JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri K.R.Sirohi, Senior Advocate assisted by Sri Nipun Singh for the petitioners and Sri Sumit Daga for the respondents. 2. Facts giving rise to the dispute are as under : Suit was filed by the respondents herein seeking a decree of permanent injunction to restrain the defendants-petitioners from interfering in the ‘Rasta’ shown by letters ABCDEF and further not to interrupt in the ingress and eggress plaintiffs-respondents as well as villagers over the said ‘rasta’. During the pendency of the proceedings, an application dated 26.2.2008 was moved by the defendants-petitioners with the prayer that they could not file evidence in the form of affidavit of one of their witness Saukat as was ill and therefore, he may be permitted to be produced as a witness. Trial Court rejected the application. On 27.2.2008 an application numbered 88-C was moved by the plaintiffs-respondents with the prayer to permit Amin Commissioner Vinod Kumar as witness. Vide order dated 15.3.2008 trial Court allowed the said application. Against which, the defendants-petitioners went up in revision, which was also dismissed on 20.3.2008. Defendants-petitioners approached this Court by filing writ petition No. 17371 of 2008 which was dismissed vide order dated 8.4.2008 with the observation that once the evidence of the witness is recorded, the defendants-petitioners shall have right to cross-examine him. The defendants-petitioners also filed a revision challenging the order dated 26.2.2008 by which their application to produce Saukat as witness was rejected. The revision was dismissed on the ground that the petitioners have already challenged the order before this Court in writ petition No. 17371 of 2008. The order was again challenged by the defendants-petitioners before this Court by filing writ petition No. 837 of 2008 which also came to be dismissed by this Court on 9.9.2008. In pursuance to the order dated 15.3.2008 affirmed by this Court vide order dated 8.4.2008 passed in writ petition No. 17371 of 2008 Amin Commissioner appeared as a witness and his statement was recorded on 27.11.2008. Thereafter, an application dated 29.11.2008 was moved by the defendants-petitioners with the prayer that they may be given a chance to produce their witness in rebuttal. Trial Court vide order dated 26.3.2009 dismissed the application. The defendants-petitioners went up in revision which was dismissed vide order dated 10.12.2009. Aggrieved, the petitioners have approached this Court. 3. Thereafter, an application dated 29.11.2008 was moved by the defendants-petitioners with the prayer that they may be given a chance to produce their witness in rebuttal. Trial Court vide order dated 26.3.2009 dismissed the application. The defendants-petitioners went up in revision which was dismissed vide order dated 10.12.2009. Aggrieved, the petitioners have approached this Court. 3. Both the Courts below rejected the prayer of the petitioners to produce witness in rebuttal on the ground that their application numbered 87-C for additional evidence has already been rejected and the order has been confirmed by this Court and prayer in the application being similar to that of the earlier application, which has already been rejected, the application is not maintainable. 4. It has been urged by learned counsel for the petitioners that the Courts below have committed an illegality in rejecting the application on the ground that earlier application for the same set of facts and claiming same relief has already been rejected inasmuch as to attract the provision of principle of res judicata enshrined in Section 11 C.P.C., the matter adjudicated upon should be directly and substantially in issue in both the proceedings. It has further been urged that since the issue involved in the earlier proceedings, which travelled up to this Court in the form of Writ Petition Nos. 17371 of 2008 and 837 of 2008, was the right of the defendants-petitioners to produce a witness whose evidence could not be adduced earlier on the ground of his illness and the right of the plaintiffs-respondents to produce the Amin Commissioner as a witness and in none of the proceedings, the question of right of the defendants-petitioners to adduce evidence in rebuttal after the plaintiffs-respondents produced the Amin Commissioner as a witness was involved and thus the rights of the defendants-petitioners to produce evidence in rebuttal was not directly and substantially in issue in earlier stage of the proceedings. It has also been submitted that in view of Explanation-5 since no relief was claimed with respect to the right to produce evidence/witness in rebuttal, the relief claimed by the present application would not be barred. Reliance in support of the contention that the matter should be directly and substantially in issue in two proceedings has been placed on the decision of Hon’ble Apex Court in the case of Ferro Alloys Corpn. Reliance in support of the contention that the matter should be directly and substantially in issue in two proceedings has been placed on the decision of Hon’ble Apex Court in the case of Ferro Alloys Corpn. Ltd. and another v. Union of India and others, (1999) 4 SCC 149 and Brahma Varat Sanatan Dharma Maha Mandal v. Kanhaiya Lal Bagla and others, (2001) 9 SCC 562 . 5. In reply, learned counsel for the respondents submits that in view of the averments and relief claimed in earlier writ petition No. 17371 of 2008 which was dismissed by this Court vide order dated 8.4.2008, the subsequent application was hit by principle of res judicata and has rightly been dismissed by the Courts below. Learned counsel for the respondents in support of his argument has produced the copy of the writ petition No. 17371 of 2008. 6. I have considered the argument advanced by learned counsel for for the parties and perused the record. 7. The proposition that in order to attract the principle of res judicata, the matter must be directly and substantially in issue in the two proceedings or two stages of the same proceedings is settled. Thus the only question which requires to be tested is whether the right claimed by the defendants-petitioners to produce evidence in rebuttal was directly and substantially in issue in the earlier stages of the proceedings between the parties. 8. The argument advanced by learned counsel for the petitioners, though attractive, fully supported by the decision of the Apex Court, but is not applicable in the facts of the case. The fallacy of the argument becomes apparent from the averments and relief claimed in writ petition No. 17371 of 2008 filed by the petitioners themselves which go to show that the writ petition was filed on the similar allegations claiming the same relief which is being claimed in the subsequent application. 9. The fallacy of the argument becomes apparent from the averments and relief claimed in writ petition No. 17371 of 2008 filed by the petitioners themselves which go to show that the writ petition was filed on the similar allegations claiming the same relief which is being claimed in the subsequent application. 9. It may be relevant to quote the following paragraph, ground and relief claimed in writ petition No. 17371 of 2008 : "P-12- That, if at all the trial Court had to exercise discretion under Order 18 Rule 17-A the petitioners-defendants should have been allowed to lead evidence in rebuttal but the trial Court committed manifest error of law and fact in rejecting the application for additional evidence of the petitioners and in the order dated 15.3.2008 Trial Court did not whisper a word about giving opportunity to the petitioners to lead evidence in rebuttal as such the order of the Courts below are against the principles of natural justice and are in violation of Article 14 of the Constitution of India. P-13- That at the stage of argument after full evidence of parties if additional evidence is allowed to one party, the other party must have been given opportunity to give evidence to prove his case or to rebut. The allegations made in such additional evidence but the Courts below have totally ignored and violated this principle of natural justice. G-V- Because, whatever view is taken, the order passed by the Courts below are not sustainable in law and facts. The application 88-C is liable to be rejected or in the alternative the petitioners should also be given opportunity to lead his additional evidence and to rebut the testimony of witness of the plaintiff otherwise the petitioners’ case will be adversely prejudiced. Prayer (i) - A writ, order or direction in the nature of certiorari quashing the orders and judgments dated 20.3.2008 (Anneuxre 7) passed by respondent No. 1 and the order dated 15.3.2008 (Annexure 4-B) passed by the respondent No. 2. Prayer (ii) - A writ, order or direction in the nature of mandamus commanding the respondent No. 2 not to allow the plaintiff-respondent Nos. 2 and 3 to examine his witness or in the alternative the petitioners may also be allowed to give their additional evidence or evidence in rebuttal of the evidence of plaintiff giving proper opportunity. 10. Prayer (ii) - A writ, order or direction in the nature of mandamus commanding the respondent No. 2 not to allow the plaintiff-respondent Nos. 2 and 3 to examine his witness or in the alternative the petitioners may also be allowed to give their additional evidence or evidence in rebuttal of the evidence of plaintiff giving proper opportunity. 10. A perusal of the above averments and prayer made in the earlier writ petition clearly establishes that in the said writ petition the petitioners based their claim that once the plaintiffs-respondents are allowed to lead any further evidence they should be allowed to lead evidence in rebuttal. Specific relief in this regard was claimed in the prayer clause. However, this Court while dismissing the writ petition only granted permission to the defendants-petitioners to cross-examine the witness produced by the plaintiffs-respondents. The earlier writ petition No. 17371 of 2008 filed by the petitioners being based on same cause of action and seeking same relief having been dismissed, the subsequent application moved by the defendants-petitioners on the same set of facts and claiming same relief clearly was not maintainable and hit by principle of res judicata and has rightly been dismissed by the Courts below. 11. In view of above, the impugned orders do not call for any interference. The petition accordingly stands dismissed. 12. However, there shall be no order as to costs. ————