JUDGMENT : B.N. Misra, J. - This appeal has been filed by the Plaintiff against the judgment and decree of the learned Second Additional Subordinate Judge, Cuttack affirming the judgment and decree of the learned Munsif, Banki. Respondents 1 to 5 are the Defendants, Respondents 6, 7 and 8 are the legal representatives of proforma Defendant No. 6 and Respondent No. 9 is proforma Defendant No. 7. 2. The Plaintiffs case is briefly noted. Defendants 1 to 5 as Plaintiffs had filed Title Suit No. 195 of 1958 in the Court of the First Munsif, Cut tack. In that suit the present Plaintiff was Defendant No. 1 and deceased Defendant No. 6 and Defendant No. 7 were Defendants 2 and 3. The prayer in that suit was for declaration of title, confirmation of possession, in the alternative, recovery of possession and for permanent injunction to restrain the Defendants in that suit, from disturbing the possession of the Plaintiffs and from withdrawing the amount held in deposit in Misc. Case No. 51 of 1958 The said Title Suit No. 195 of 1958 was dismissed by the learned Munsif. The present Defendants 1 to 5 preferred Title Appeal No. 151 of 1960 against the dismissal of their suit. The Title Appeal was dismissed and the judgment and decree of the trial court were confirmed. Thereafter present Defendants 1 to 5 preferred Second Appeal No. 302 of 1963 in this Court. By judgment dated 30-7-1964 the appeal was allowed and the suit was decreed in favour of the Plaintiffs (present Defendants 1 to 5) as against Defendants 2 and 3 (deceased proforma Defendant No. 6 and proforma Defendant No. 7) ex-parte and Defendant No. 1 (present Plaintiff) on contest. It is asserted by the present Plaintiff that notices in Second Appeal No. 302 of 1963 had not been served upon him, but were fraudulently suppressed and a false report of service of notice was given to the effect that the Plaintiff had refused to accept the notice and that service had been effected, by affixture on 14-10-1963. As the Plaintiff was not in the village on 14-10-1963, no notice could possibly be served upon him on that date. On 13-8-1964 for the first time the Plaintiff came to know about the result of the Second Appeal. As the Plaintiff was not in the village on 14-10-1963, no notice could possibly be served upon him on that date. On 13-8-1964 for the first time the Plaintiff came to know about the result of the Second Appeal. Thereafter the Plaintiff filed M.J.C. No. 51 of 1964 in this Court to set aside the judgment and decree passed in tile Second Appeal, but by order dated 2-4-1965 the M.J.C. No. 51 of 1964 was dismissed. In these circumstances, the Plaintiff had filed the present suit for a declaration that he was not bound by the decision in Second Appeal No. 302 of 1963 and that the decision in Title Appeal No. 151 of 1960 was binding on the parties and for recovery of possession of the suit land through Court. 3. Defendants 1 to 5 have filed a joint written statement. They have stated that notices in Second Appeal No. 302 of 1963 had not been suppressed, but had been duly served upon the present Plaintiff who had full knowledge of the Second Appeal and his non-appearance was the result of gross negligence. The plaint allegation that the Plaintiff was not present in the village on 14-10-1963 has been denied. It is also denied that any false report regard 109 service of notice on the Plaintiff had been given in the Second Appeal. It is further stated that the Plaintiff ordinarily resides in village Kalapathara and had received several telegrams at Kalapathara under his signature during the relevant period. The Plaintiff had taken the plea of suppression of notice in M.J.C. No. 51 of 1964 but the said plea was not accepted by this Court and the M.J.C. was dismissed. According to these Defendants the suit is not maintainable being barred by res-judicata. The Defendants have accordingly prayed for dismissal of the suit. Deceased proforma Defendant No. 6 and proforma Defendant No. 7 did not contest the suit and were set ex-parte. 4. According to these Defendants the suit is not maintainable being barred by res-judicata. The Defendants have accordingly prayed for dismissal of the suit. Deceased proforma Defendant No. 6 and proforma Defendant No. 7 did not contest the suit and were set ex-parte. 4. The main findings of the learned trial court are that the present suit is barred by res judicata as the same plea of suppression of notice had been agitated in M.J.C. No. 51 of 1964 which was dismissed by this Court that the suit is barred by the law of limitation, that the Plaintiff ordinarily resides at village Kalapathara that the Plaintiff had failed to prove the allegation of fraud and non-service of summons in Second Appeal No. 302 of 1963 and that in the said Second Appeal notice had been duly served on the Plaintiff. The Plaintiffs suit was accordingly dismissed. In appeal, the learned lower appellate court set aside the finding of the Munsif on the point of limitation and held that the suit had been filed within time. However, he confirmed the other findings of the learned Munsif noted above and dismissed the appeal filed by the Plaintiff. 5. In this Court, learned Counsel appearing for the Plaintiff-Appellant assails the concurrent findings of the courts below on the issues of sufficiency of service of notice on the Plaintiff in Second Appeal No. 1302 of 1963 and res-judicata. 6. Issue No. 5 dealing with the question of suppression of summons on the Plaintiff in Second Appeal No. 302 of 1963 and the allegation of fraud will be taken up for consideration first. On this question the learned lower courts had rightly placed the onus on the Plaintiff to prove that there was suppression of notice and fraud committed against him as a result of which he could not appear in Second Appeal No. 302 of 1963 which was decided ex parte against him. Both the courts have discussed the oral and documentary evidence adduced by the parties at great length and have come to the conclusion that there was no suppression of notice on the Plaintiff and that no fraud had been committed against him. P.Ws. 1 and 2 belong to Mouza Sankaloi in Phulbani district. P.W. 1 has stated that from Aswina to Jyestha in the year 1963 the Plaintiff stayed in his house at Sankaloi. P.Ws. 1 and 2 belong to Mouza Sankaloi in Phulbani district. P.W. 1 has stated that from Aswina to Jyestha in the year 1963 the Plaintiff stayed in his house at Sankaloi. However, he does not give the specific dates regarding the stay of the Plaintiff at Sankaloi nor has he produced any document to support his testimony. P.W. 2 has stated that ten to twelve years ago the Plaintiff was staying in the house of P.W. 1. In cross-examination P.W. 2 went to the extent of saying that on 14-10-1963 the Plaintiff was at Sankaloi, but immediately thereafter he added that being a cultivator he had no knowledge about the dates and months of the English calendar. In these circumstances, no reliance can be placed on the evidence of P.Ws. 1 and 2, particularly when they are deposing from memory after lapse of ten to twelve years. P.W. 3 who belongs to Kalapathara has stated that on 14-10-1963 he was present in the village when the Court Peon came at about 10 to 11 a.m. and that at that time the Plaintiff was not present in the village. However, according to P.W. 3 he put his signature on the summons at the behest of the Court Peon. It is difficult to accept the statement of P.W. 3 that even though the Plaintiff was not present in the village, he had signed the summons only at the request of the Court Peon. P.W. 3 is also not speaking the truth when he says that the Court peon had come to serve the notice on the Plaintiff at 10 to 11 a.m., because, in Ext. A, the certified copy of the report of the Process Server, it is clearly noted that the notice was served at 8 a.m. P.W. 4 who also belongs to Kalapathara has stated that the Court Peon had come to the village at 10 to 11 a.m. and although the Plaintiff was absent, P.W. 3 had signed die summons on being asked to do so by the Court Peon. Here again P.W. 4's testimony that the Court Peon had visited the village at 10 to 11 a.m. is belied by the endorsement on Ext. A that the Peon had visited the village at 8 a.m. P.W. 5 is the Plaintiff himself. Here again P.W. 4's testimony that the Court Peon had visited the village at 10 to 11 a.m. is belied by the endorsement on Ext. A that the Peon had visited the village at 8 a.m. P.W. 5 is the Plaintiff himself. He has also stated that he was not present in the village on 14-10-1963 when the Court Peon had gone to village Kalapathara to serve the notice on him. As held by the lower courts, the oral evidence relied on by the Plaintiff with regard to non-service of summons and fraud is most unsatisfactory. Exts. 1 to 7 are the letters of different dates in 1963-64 exhibited on behalf of the Plaintiff. These letters merely show that during the year 1963-64 the Plaintiff was occasionally visiting village Sankaloi. None of these letters clearly establishes that on 14-10-1963 the Plaintiff was not present in village Kalapathara but was at Sankaloi. Ext. 8 series are three timber transport permits and they also do not prove the absence of the Plaintiff from his village on 14-10-1963. On the other hand these permits show that the Plaintiff was the purchaser of the timber and the destinations of the goods were Kalapathara and Cuttack. Defendants 1 to 5 have examined five witnesses on their behalf. They also rely on documentary evidence. D.W. 1 is the Process Server who had gone to Kalapathara on 14.10.1963 with the summons to be served on the Plaintiff and proforma Defendants 6 and 7. Defendants 6 and 7 received the summons and signed the acknowledgment. However, on refusal by the Plaintiff, D.W. 1 hung the summons on the front door of the Plaintiffs house. Exts. A, Band 9 are the certified copies of the reports of the Process Server in Second Appeal No. 302 of 1963; D.W. 2 is proforma Defendant No. 7. According to her, she had received the summons in Second Appeal No. 302 of 1963 from D.W. 1 at Kalapathara on 14-10-1963 and P.W. 3 and the late Chintamani Sahu and Maheswar Sahu had identified her. She has also stated that the Plaintiff always remains in the village and maintains his livelihood by selling ready-made garments and repairing umbrella. D.W. 3 is the late Narayan Swain, proforma Defendant No. 6. He has also stated that on 14.10.1963 he had received the summons in Second Appeal No. 302 of 1963 from D.W. 1. She has also stated that the Plaintiff always remains in the village and maintains his livelihood by selling ready-made garments and repairing umbrella. D.W. 3 is the late Narayan Swain, proforma Defendant No. 6. He has also stated that on 14.10.1963 he had received the summons in Second Appeal No. 302 of 1963 from D.W. 1. The evidence of D.Ws. 2 and 3 fully corroborates the evidence of D.W. 1, which is also otherwise corroborated by Exts. A, B and 9. D.W. 4 who belongs to Kalapathara has stated that he had seen D.W. 1 offering notice to the Plaintiff but he refused to accept the same. D.W. 5 is Defendant No. 3 and he has supported his case. On consideration of the oral and documentary evidence referred to above, the Courts below have found that notice in Second Appeal No. 302 of 1963 had been duly served on the Plaintiff on 14-10-1963 and that the allegation of the Plaintiff that notice had been suppressed and fraud had been practised upon him has not at all been established. I entirely agree with the said concurrent finding of the courts below. This issue his been rightly decided. 7. On the question of res judicata, the learned lower courts have discussed the facts of this case and also the case law on the subject and I see no reason to take a different view. Learned Counsel appearing for the Plaintiff-Appellant urged that the principle of res judicata does not apply to this case as M.J.C. No. 51 of 1964 had been dismissed by this Court in limine and not on merits. In support of this proposition learned Counsel relies on Narinder Singh v. Khaliqur Rehman and Ors. AIR 1974 Del 184 and Hoshank Singh v. Union of India and Ors. AIR 1979 S.C. 1328 . In both these decisions, the well known principle is reiterated that if a writ petition is dismissed in limine without passing a speaking order, then such a dismissal cannot be treated as creating a bar of res judicata. In Narinder Singh's case AIR 1974 Del 184 , it was also observed: There is, therefore, a strong authority in support of the proposition that the mere word 'dismissed' in limine is sufficient to constitute the bar of res judicata. In Narinder Singh's case AIR 1974 Del 184 , it was also observed: There is, therefore, a strong authority in support of the proposition that the mere word 'dismissed' in limine is sufficient to constitute the bar of res judicata. We agree with the proposition of law that ordinarily the word 'dismissed' in the absence of any other circumstance to the contrary, would indicate that the Court considered all the contentions of the party and not finding any merit in them dismissed the petition on merits. To this extent, the said decisions are in full accord with Daryao and Others Vs. The State of U.P. and Others. However, in our opinion, there may be circumstances on the record which may show that even when the word 'dismissed' was recorded, the writ petition was not dismissed by the Court on merits but on other grounds like laches or availability of other remedy or was dismissed as withdrawn. If these facts and circumstances are established fully to the satisfaction of the Court, the dictum of the Supreme Court would be applicable and such a petition cannot be said to have been dismissed on merits and if that be so, it cannot operate as res judicata. Even the rule as enunciated in Section 11 of the CPC envisages that the matter must have been heard and finally decided by the Court before it creates the bar of res judicata. In Union of India (UOI) Vs. Nanak Singh the Supreme Court in paragraph 6 expressly ruled that in order that the previous adjudication between the parties may operate as res judicata, the question must have been heard and decided or that the parties must have an opportunity of raising their contentions thereon. In the present case, Ext. C. the certified copy of the ordersheet in M.J.C. No. 51 of 1964 shows that the Plaintiff had filed the M.J.C. petition and had entered appearance through his counsel. His counsel and the counsel for the opposite parties were heard and thereafter the M.J.C. was dismissed. Learned Counsel for the Plaintiff-Appellant has pointed out that since a copy of the M.J.C. petition filed by the Plaintiff is not on record it cannot be ascertained what actually was stated in the M.J.C. petition. This contention has no force. His counsel and the counsel for the opposite parties were heard and thereafter the M.J.C. was dismissed. Learned Counsel for the Plaintiff-Appellant has pointed out that since a copy of the M.J.C. petition filed by the Plaintiff is not on record it cannot be ascertained what actually was stated in the M.J.C. petition. This contention has no force. A reading of paragraphs 10 to 18 of the plaint clearly shows that the M.J.C. petition had been submitted to the effect that the Plaintiff had refused to accept notice and that service had been effected by affixture. Thus it is clear that the grounds taken by the Plaintiff in M.J.C. No. 51 of 1964 after hearing counsel on both sides would indicate that the contentions of the Plaintiff with regard to non-service of notive, suppression of summons and fraud were considered and as there was no merit in them, they were dismissed. In these circumstances, I agree with the concurrent finding of the learned lower courts that the present suit is barred by res judicata. 8. In the result, this appeal is dismissed with costs. The judgments and decrees of the learned lower courts are confirmed. Final Result : Dismissed