Neutral Citation No. - 2025:AHC:76728 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 646 of 2016 Petitioner :- Smt. Urmila Devi Respondent :- Raj Bahadur Singh And 2 Others Counsel for Petitioner :- Nikhil Kumar,Prashant Kanha,S.S.P Gupta Counsel for Respondent :- Krishna Mohan,Satyendra Pratap Singh Hon'ble Rohit Ranjan Agarwal,J. 1. The petitioner before this Court is plaintiff of Suit No.459 of 2002 instituted before the Court of Civil Judge, Senior Division, Kanpur Dehat for specific performance in regard to Arazi No.27 situated in Village Khanchandpur, Tehsil Akbarpur, Kanpur Dehat against defendant-respondent No.1. 2. Earlier, Original Suit No.242 of 1991 was filed by one Umakant Industries through its partner Baburam Yadav against Janpriya Industries and Rama Kant Industries defendant No.1 and 2 claiming relief of declaration in respect of Arazi No.27 situated in Village Khandchandpur, Tehsil Akbarpur, Kanpur Dehat on basis of partition arrived at between the parties. The said suit was decreed on the admission made by defendant No.1, the present respondent No.1 in the present writ petition and a decree was made in terms of order XII, Rule 6 C.P.C. on 23.11.1991. 3. In Suit No.459 of 2002 instituted by petitioner Smt. Urmila Devi against respondent No.1 for specific performance, issue No.9 was framed in regard to the fact whether the suit was barred by Section 11 C.P.C. The trial Court on 31.7.2014 recorded a finding that the said suit is not barred by provision of res judicata as the suit of 1991 was for declaration, declaring that partition had taken place between plaintiff and defendants there in, while the present suit instituted by plaintiff-petitioner was in respect of specific performance of property in question. Against the said order, Civil Revision No.50 of 2014 was preferred by respondent No.1 and has been allowed by the order impugned. 4. Counsel for the petitioner submits that provision of Section 11 C.P.C. are not attracted in the present case as the relief claimed in both the suits are totally different. The earlier suit of 1991 was decreed on the basis of admission made by defendant No.1 Raj Bahadur Singh that the partition had taken place between them. According to him, the present suit is only for specific performance as the property in question was purchased from the money taken from plaintiff by respondent No.1 and the same needs to be transferred in the name of plaintiff. 5. Learned counsel appearing for respondent No.1 submits that ingredients of Section 11 C.P.C. are attracted as the parties as well as property in both the suits are the same. He further contends that the second suit is barred by the provisions of Benami Transactions (Prohibition) Act, 1988. 6. I have heard the respective counsel for the parties and perused the material on record. 7. Before adverting to decide the issue in hand, a cursory glance of Section 11 C.P.C. is necessary for better appreciation of the case, which is extracted hereas under : "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." 8. The very initiation of section clearly provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a competent Court. 9. In the instant case, issue in both the suits are totally different as the earlier suit was filed by Umakant Industries against Janpriya Industries and Ramakant Industries for declaratory rights in respect of property which was said to have been partitioned between them. The suit of 1991 was decreed on 23.11.1991 on the basis of admission of defendant No.1 under Order XII, Rule 6 C.P.C. 10. The instant case is by the wife of one of the partner of Umakant Industries, the plaintiff of Suit of 1991, wherein she has claimed relief of specific performance against respondent No.1, who was the managing partner of defendant No.1 Janpriya Industries. 11. Thus, it is clear from perusal of array of parties that in both the suits the parties are different. The suit of 1991 was contested by the plaintiff and defendant partnership firm while the instant suit has been filed in the individual capacity and for a different relief. The issue framed by the trial Court in suit on 1991 was whether partition had taken place between the parties and was binding between them. The said issue was decided on the basis of admission of defendant No.1 in the said suit. 12. In the instant case, the relief claim is for specific performance and the Court below, while deciding the issue as to whether the suit is barred by Section 11 C.P.C., has returned a clear finding that the issue in both the suits are totally different and the provisions of Section 11 C.P.C. are not attracted. 13. Considering the facts and circumstances of the case, I find that that the revisional Court has exceeded its jurisdiction while setting aside the order passed by the trial Court and holding that the suit is barred by the provisions of rej judicata. 14. In the result, the writ petition stands allowed. The order dated 11.12.2015 passed by Additional District Judge, Court No.3, Kanpur Dehat in Civil Revision No.50 of 2014 is hereby set aside. The trial Court is directed to proceed with the suit filed by the plaintiff strictly in accordance with law. Order Date :- 12.5.2025 Kushal Digitally signed by :- KUSHAL AGRAWAL High Court of Judicature at Allahabad