JUDGMENT C.L. Soni, J. 1. By the present revision application filed under section 115 of the Code of Civil Procedure, 1908, ("the Code"), the petitioner-original defendant has challenged the order dated 15.4.2013 passed by the learned 14th Additional Senior Civil Judge, Rajkot below application Exh. 17 in Special Civil Suit No. 220 of 2011. 2. The application Exh. 17 was preferred to reject the suit on the ground that the suit is barred by the principles of res-judicata. The learned Judge has rejected the application on the ground that whether the judgment rendered in the earlier suit being Regular Civil Suit No. 924 of 1991 would apply as res-judicata or not is a matter which cannot be decided without leading the evidence. The learned Judge also observed that on perusal of the copies of the plaint and the judgment rendered in the earlier suit, it cannot be decided at the present stage that the principles of res judicata would apply to the present suit. 3. I have heard learned Senior Advocate Mr. Percy Kavina with learned Advocate Mr. Ashish Dagli for the petitioner and learned Advocate Mr. Gunvant Shah for the respondent - original plaintiff. Mr. Kavina submitted that the bare looking at the contents of the plaint would reveal that the plaintiff had filed the suit in the year 1991 for the same cause of action and after having lost in the suit, abandoned his claim in appeal and since the petitioner is the successor in title and claiming through the original owner, can certainly urge for rejection of the plaint not only on the ground that the plaint is barred by res judicata but also on the ground that the plaintiff has been filing vexatious and frivolous litigations. Mr. Kavina submitted that even the subsequent suit filed by the very plaintiff against the petitioner being suit No. 133 of 2009 was withdrawn though with permission to file the fresh suit but the said suit was also barred by res-judicata as also by law of limitation. Relying on the provisions of Order 23, Rule 2 of the Code, Mr. Mr. Kavina submitted that even the subsequent suit filed by the very plaintiff against the petitioner being suit No. 133 of 2009 was withdrawn though with permission to file the fresh suit but the said suit was also barred by res-judicata as also by law of limitation. Relying on the provisions of Order 23, Rule 2 of the Code, Mr. Kavina submitted that the limitation for the present suit should be taken to have commenced when the earlier suit was filed and considering the cause of action stated in the plaint, the suit could be said to have been barred by the law of limitation and such suit cannot be allowed to be tried just to find out whether the suit at later point of time could be dismissed on the ground of estoppel, res judicata or of law of limitation. Mr. Kavina submitted that considering the averments of the plaint, it clearly appears that the plaintiff has all throughout right from 1991 onward continued to file frivolous and vexatious litigations and such litigations could be stopped by taking the averments made in the plaint itself by exercising powers under Order 7 Rule 11 of the Code. In support of his submission, learned Senior Advocate Mr. Kavina has relied on the judgment in the case of T. Arivandandam v. T.V. Satyapal and another, reported in AIR 1977 SC page 2421 so as to contend that when the Court finds from the contents of the plaint that the suit filed is frivolous and vexatious and that it is barred by the principles of res-judicata and law of limitation, the Court itself can exercise the powers under Order 7, Rule 11 of the Code to reject the plaint at the threshold. 4. As against the above arguments, learned Advocate Mr. Gunvant B. Shah appearing for the respondent submitted that first suit of 1991 was against the personal action of the original owner who attempted to encroach upon the land of the plaintiff. Mr. Shah submitted that in the said suit, the Court recorded the finding that the plaintiff was the owner of the property in question being plot No. 42A. However, such suit was dismissed only on the ground that pending the suit, the defendant-original owner since ceased to be the owner of the suit property, no relief could be granted in view of such development. Mr. However, such suit was dismissed only on the ground that pending the suit, the defendant-original owner since ceased to be the owner of the suit property, no relief could be granted in view of such development. Mr. Shah submitted that later on when the fresh cause of action arose for the plaintiff against the petitioner, the plaintiff has filed the present suit wherein the reliefs prayed are different than the relief which were prayed in the first suit of the year 1991. Mr. Shah submitted that when the first suit was filed, there was no encroachment made on the land whereas in the present suit, there is distinct relief prayed for removal of the construction made on the land of the plaintiff by encroaching upon the land of the plaintiff and, therefore, it cannot be said that the present suit is barred by the principles of res-judicata. Mr. Shah submitted that the only ground urged in the application is the ground of res-judicata for rejection of the plaint and there is no question of considering the ground of limitation for rejection of the plaint. 5. Having heard the learned advocates for the parties, it appears that the defendant by application Exh. 17 wanted rejection of the plaint on the ground that the present plaintiff had filed the suit being Regular Civil Suit No. 924 of 1991 and preferred appeal against the judgment rendered in the said suit with application for condonation of delay which was later on withdrawn and since the said suit was for the same cause of action on the allegation of encroachment on the land of the plaintiff, the present suit of the plaintiff is barred by res-judicata. As such, for rejection of the plaint, what is required to be seen is the averments made in the plaint. From the averments made in the plaint of Special Civil Suit No. 220 of 2011, it appears that the plaintiff has given out details as regards filing of the suit by her in the year 1991 against the original owner of adjoining plot Shri Dhirajlal Ravjibhai Patel and stated that the original owner then sold her property to her married daughter, Smt. Gitaben in the year 1993. It is further stated that the said suit was filed with the allegation that Shri Dhirajbhai was attempting to illegally entering on the property of the plaintiff. It is further stated that the said suit was filed with the allegation that Shri Dhirajbhai was attempting to illegally entering on the property of the plaintiff. It is further stated that in the said suit, the plaintiff preferred application Exh. 81 to join Smt. Gitaben who became the successor-in-title. However, such application was rejected on the ground that the suit was against the personal action of Shri Dhirajbhai. The suit was dismissed in the year 2008 on the ground that since Shri Dhirajbhai sold the property, it would not be proper to continue the proceedings of the suit. It is further averred that the plaintiff withdrew the application for condonation of delay in filing the appeal against the judgment and decree rendered in the said suit since Dhirajbhai ceased to be the owner of the suit property, litigation had become infructuous. The plaintiff has further averred that she filed another suit being Regular Civil Suit No. 92/2009 against Gitaben seeking permanent injunction restraining Gitaben from entering on the open land (Varanda). However, pending the suit, since Gitaben sold plot No. 42B to the petitioner, the plaintiff made an application to join him as party in the said suit, but since such application was rejected vide order dated 10.9.2009, the suit had become infructuous and, therefore, it was withdrawn. What is further stated in paragraph 5 and onwards is very relevant. It is averred that after Gitaben sold plot No. 42B to the petitioner, on 10.4.2009, the petitioner came with some unknown persons with JCB Machine and demolished the bricks wall constructed by the plaintiff surrounding his plot No. 42A and thereupon, the plaintiff immediately called for the police help and defendant was prevented from carrying on further activity. It is stated that the plaintiff had already sent written complaint to Police Commissioner on 19.4.2008 as regards illegal activities of the petitioner. However, since the petitioner continued with his illegal activities, the plaintiff filed the suit being Special Civil Suit No. 133 of 2009 but since pending the suit, the petitioner got sanction from the Rajkot Municipal Corporation and made some construction on 140 square meter of land of plot No. 42A belonging to the plaintiff, the plaintiff sought permission to withdraw the said suit with a view to file fresh suit. The Court permitted the plaintiff to withdraw the said suit and to file the fresh suit and that is how the present suit is filed by the plaintiff seeking different reliefs than the reliefs prayed by the plaintiff in her earlier suit and on different cause of action. 6. Having perused the contents of the present plaint, it prima facie appears that not only earlier suit was on different cause of action but was also not for the same reliefs prayed in the present suit. Therefore, whether the suit is barred by res-judicata could not be decided at this stage until the plaint of earlier suit and the judgment rendered therein are perused when produced in suit to find out whether the issue in the present suit was directly and substantially the same issue finally decided. Such exercise could be undertaken only when the petitioner relies on the earlier suit and the judgment rendered therein in his evidence in support of the plea of bar of present suit by doctrine of res-judicata. The Court finds that the learned Judge has not committed any error in observing in his impugned order that whether the ground of res-judicata could be applied is a question which could not be decided without looking at the evidence which may be led by the parties. Learned Senior Advocate Mr. Kavina however places reliance on the judgment in the case of T. Arivandandam (supra) to point out that if the court finds that the plaintiff has indulged into gross abuse of the process of the Court repeatedly and unrepentantly, the Court should exercise its powers under Order 7, Rule 11 of the Code. In T. Arivandandam's case (supra), the Hon'ble Supreme Court has held and observed in para 5 as under: "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O.X. C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi. "It is dangerous to be too good."" 7. Reading the plaint, this Court does not find that it is manifestly vexatious and meritless and does not disclose a right to sue. In the case of T. Arivandandam (supra), Hon'ble Supreme Court has not laid down an absolute rule that where-ever the plaintiff has resorted to any earlier litigation and the defendant raises an objection in later suit of bar of res-judicata, the Court should reject the plaint at the threshold irrespective of the facts of the case and without considering the matters involved in the earlier suits. 8. In the case of Abdul Gafur and another versus State of Uttarakhand and others, reported in (2008) 10 SCC 97 , Hon'ble Supreme Court has held and observed in para 16 as under: "16. Section 9 of the Code provides that civil court shall have jurisdiction to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. Section 9 of the Code provides that civil court shall have jurisdiction to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. To put it differently, as per Section 9 of the Code, in all types of civil disputes, civil courts have inherent jurisdiction unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision and conferred on other Tribunal or Authority. Thus, the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute." 9. At this stage, reference needs to be made to the judgments of the Hon'ble Supreme Court in the case of Kamala and others versus K.T. Eshwara SA and others reported in (2008) 12 SCC 661 . The Hon'ble Supreme Court has held and observed in paragraph No. 21, 22, 23, 25, 32 and 34 as under: "21. Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or sub traction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another. 22. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 23. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. (Emphasis supplied) 25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for registration of plaint should be entertained. 32. We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which, in our opinion, cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code. Whether any property is available for partition is itself a question of fact. 34. The only contention raised before the learned Trial Judge was the applicability of the principles of res-judicata. Even for the said purpose, questions of fact cannot be gone into. What can only be seen are the averments made in the plaint. Whether any property is available for partition is itself a question of fact. 34. The only contention raised before the learned Trial Judge was the applicability of the principles of res-judicata. Even for the said purpose, questions of fact cannot be gone into. What can only be seen are the averments made in the plaint. What inter alia would be relevant is as to whether for the said purpose the properties were sold by reason of any arrangement entered into by and between the parties out of court; whether they had accepted the partition or whether separate possession preceded the actual sale; or whether the contention that a presumption must be drawn that for all practical purposes the parties were in separate possession, are again matters which would not fall for consideration of the court at this stage." (Emphasis supplied) 10. Mr. Kavina however submitted that in the case of Kamala (supra), on considering the facts of the case, Hon'ble Supreme Court found that the plaint could not be rejected by applying doctrine of res-judicata. However, what is observed in para 23 of the judgment in the said case cannot be lost sight of. This court finds from the contents of the plaint that the plaintiff has not only disclosed fresh cause of action for filing the present suit which was not there when the earlier suits were filed but also prayed for different reliefs in the present suit. In the earlier suit, the prayer for demolition of the alleged illegal construction was not there nor even the relief for possession was prayed therein. Earlier suits were filed by the plaintiff just to restrain the original owner from encroaching upon the land and from making illegal construction thereon. Therefore, in the facts of the present case, the learned Judge committed no error in holding that the plaint cannot be rejected without looking at the documents of plaints and orders - judgments rendered in the earlier suits. Similarly, withdrawal of the application for delay occurred in filing the appeal by the plaintiff against the judgment in earlier suit was whether abandonment of the claim and principles of res-judicata would apply as argued by Mr. Kavina, cannot be gone into at this stage. 11. As regards argument that the suit is barred by limitation, it is required to note that in the application Exh. 17, no such ground is urged. Kavina, cannot be gone into at this stage. 11. As regards argument that the suit is barred by limitation, it is required to note that in the application Exh. 17, no such ground is urged. However, even if such ground is considered, in view of contents of the plaint including the cause of action relatable to the incident alleged to have taken place on 10.4.2009 with prayer for relief of demolition of the illegal construction and possession of the land encroached, the facts of the case and evidence to be led will be required to be considered to decide whether the suit is barred by the law of limitation. Therefore, the question of limitation in the present case is a mixed question of law and facts and cannot be a ground to reject the plaint. 12. For the reasons stated above, the present revision application is rejected. Notice is discharged. Application Dismissed.