Ali Hussain v. Abida B

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Civil Revision No.44 of 2019 Ali Hussain S/o - Fatte Mohammed, Aged about 38 years, R/o Bajinpali, Raigarh, Tahsil & District - Raigarh (CG) --- Applicant

Versus

1. Abida Bi W/o Late Fakir Mohammed, Aged about 49 years,

2. Mohammed Ali S/o late Fakir Mohammed, Aged about 45 years

3. Hammed Khan S/o Mohammed Ali Khan, aged about 49 years,

4. Rasheed Khan S/o Mohammed Ali Khan, aged about 27 years

5. Naseer Khan S/o Mohammed Ali Khan, aged about 27 years All R/o - Bajinpali, Raigarh, Tehsil & District - Raigarh (CG)

6. State of Chhattisgarh, through Collector, Raigarh (CG) --- Respondents For Applicant:

Mr.Amit Sharma, Advocate For Respondent No.6/State: Mr.Ravi Kumar Bhagat, Dy.Govt.Advocate Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 17/06/2019

1. Heard on question of admission of civil revision.

2. Feeling aggrieved against the order dated 31.1.2019 passed by the First Civil Judge Class-II, Raigarh in Civil Suit No.A/39/2016 rejecting the application filed by the applicant under Section 11 of the CPC, this civil revision has been preferred.

3. Learned counsel for the applicant would submit that the instant suit is barred by principle of res-judicata and therefore, it ought to have rejected by the trial Court, but the trial Court has committed legal error by holding that a plea of res-judicata is a mixed question of law and fact. He would further submit that the trial Court is absolutely unjustified in rejecting the application as the suit is

apparently barred by principle of res-judicata as contained in Section 11 of the CPC.

4. I have heard learned counsel for the applicant, considered his submission made hereinabove and went through the records with utmost circumspection.

5. The trial Court has clearly held that plea of res-judicata is a mixed question of law and fact, which can be decided after framing the issue along with other issues.

6. The Supreme Court in the matter of Vaish Aggarwal Panchayat v. Inder Kumar & others1 has clearly held that question of plea of res-judicata is a mixed question of law and fact, which can not be decided while considering the application under Order 7 Rule 11(d) of the CPC.

7. Since the trial Court has rightly held that issue of plea of resjudicata is a mixed question of law and fact, I do not find any illegality in the said order.

8. Accordingly, the civil revision deserves to be and is hereby dismissed at the stage of admission itself, without notice to other side. However, the applicant is at liberty to raise a plea of resjudicata in his written statement. If such a plea is raised, the trial Court shall frame the issue on such point. A copy of this order be sent to the concerned trial Court by E-mail/fax. Sd/- (Sanjay K. Agrawal) Judge B/- AIR 2015 SC 3357