ORDER : The Office has placed the Note for Speaking to Minutes dated 27.11.2019 in Oral Judgment dated 24.10.2019 in CRA No.17 of 2018. Mr. Shelat learned advocate for the applicant has stated that there is an inadvertant mistake in Para­16 with regard to the HRP Suit Number. Due to typographical mistake, the HRP Suit No.782 of 2014 is typed as HRP Suit No.783 of 2014, in Para­16 of the order dated 24.10.2019. The HRP Suit No. 783 of 2014 inadvertantly mentioned in Para­16 of the order dated 24.10.2019 in CRA No.17 of 2018 is corrected and shall be read as 'HRP Suit No.782 of 2014'. Fresh Writ to be issued to the trial Court. The Note for speaking to minutes is accordingly disposed. JUDGMENT : 24/10/2019 1. Being aggrieved and dissatisfied with the judgment and order passed by the learned Judge, Small Cause Court No.9, Ahmedabad (hereinafter be referred to as “the Trial Court”) below Exhibit 44 in H.R.P. Suit No.782 of 2014 dated 11.12.2017 filed by the applicants for rejecting the plaint on the ground mentioned in the application thereof, the applicants have preferred the present civil revision application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter be referred to as “the CPC”). 2. The brief facts of the present application is that the applicants are the original landlords of the suit premises named as “Gopal Bhuvan”, herein the original tenant namely Chandulal Mathurdas Panchal was residing and who has subletted the suit premises in favour of one Ghanshyam Kantilal Panchal, who happens to be the son of opponent No.1 herein. That, the applicants have filed H.R.P. Suit No.17 of 1996 against the original tenant as well as sub-tenant which came to be decreed in favour of the applicants on 18.07.2008. Against that order, the original tenant and sub-tenant have preferred first appeals being Civil Appeal No.259 of 2008 and Civil Appeal No.260 of 2008. During the pendency thereof, original tenant has died and, therefore, Civil Appeal No.259 of 2008 was abated on 18.11.2017. Against that order, the original tenant and sub-tenant have preferred first appeals being Civil Appeal No.259 of 2008 and Civil Appeal No.260 of 2008. During the pendency thereof, original tenant has died and, therefore, Civil Appeal No.259 of 2008 was abated on 18.11.2017. 2.1 It is alleged by the applicants that opponent No.1 herein – mother of sub-tenant – Ghanshyam Kantilal Panchal has filed H.R.P. Suit No.782 of 2014 against the applicants seeking declaration and injunction contending inter alia that she is residing in the suit premises with her husband since her marriage along with original tenant Chandulal Mathurdas Panchal and as original tenant died one year prior to the suit, she became direct tenant of the suit premises as per the Bombay Rent Act. In that suit, opponent No.1 has not disclosed about earlier suit and eviction decree passed against her son for suit premises itself. It is alleged by the applicants that they have filed their written statement narrating all true and correct facts and also submitted the copy of the judgment and decree dated 18.07.2008 and referred about pendency of the said appeals. It is alleged by the applicants that they have moved an application below Exhibit 44 in subject suit contending inter alia that as there is binding decree passed in earlier suit and as plaintiff has in collusion with her son have filed present suit just to frustrate earlier decree and not come with clean hands then the present suit may be dismissed. During the Trial Court, opponent No.1 has filed interim injunction application, which came to be rejected by the Trial Court by observing that said judgment and decree dated 18.07.2008 is binding to opponent No.1 and operated as res judicata in the suit and also observed that the plaintiff has not come with clean hands and suppressed the material facts. It is alleged that the Appeal from Order No.18 of 2015 filed by the applicant against the said order came to be withdrawn by her. 2.2 It is alleged by the applicants that after hearing the parties, the Trial Court has framed the issues on 06.08.2016 and, thereafter, the applicants have moved an application for dismissal of the suit. The same was objected by opponent No.1 and filed reply and after hearing the parties, the Trial Court has rejected the application filed by the applicants. 2.2 It is alleged by the applicants that after hearing the parties, the Trial Court has framed the issues on 06.08.2016 and, thereafter, the applicants have moved an application for dismissal of the suit. The same was objected by opponent No.1 and filed reply and after hearing the parties, the Trial Court has rejected the application filed by the applicants. Against that order, this civil revision application is preferred by the applicants for quashing and setting aside the impugned order dated 12.02.2017 passed by the learned Judge, Small Causes Court No.9, Ahmedabad below Exhibit 44 in HRP Suit No.782 of 2014 and to allow the said application below Exhibit 44 by dismissing/rejecting the suit. 3. The opponent No.1 has filed affidavit-in-reply inter alia denied the contentions and has stated that she was not party in the previous suit and, therefore, the principle of res judicata will not be applicable in the present suit and the point raised in the application is misconceived. She has stated that no evidence qua her has been led in the earlier suit to declare her sub-tenant and, therefore, no question of conflicting decree would arise in the facts of the present case. She has stated that the application itself is not clearly stating that under which provision of law, the suit is required to be rejected. She has stated that during the course of the arguments, the advocate of the present applicant has requested the Trial Court to reject the plaint under Order 7 Rule XI on the ground of limitation and point of res judicata was not dealt with by the Trial Court as it was not raised and, therefore, the Trial Court has not committed any error in the impugned order. According to her version, the impugned order passed by the Trial Court is not liable to be interfered by this Court in exercise of its revisional jurisdiction. She has prayed to dismiss the present civil revision application. 4. Heard Mr.Maulik Shelat, learned counsel for the applicants and Mr.Manish Shah, learned counsel for opponent No.1. The opponent No.2 has refused to receive the service of notice of rule. However, nobody has appeared on behalf of opponent No.2. Perused the materials placed on record. 5. She has prayed to dismiss the present civil revision application. 4. Heard Mr.Maulik Shelat, learned counsel for the applicants and Mr.Manish Shah, learned counsel for opponent No.1. The opponent No.2 has refused to receive the service of notice of rule. However, nobody has appeared on behalf of opponent No.2. Perused the materials placed on record. 5. Mr.Maulik Shelat, learned counsel for the applicants has submitted that the applicants are the original landlords of the suit premises wherein the original tenant namely Chandulal Mathurdas Panchal was residing and subletted the suit premises in favour of one Ghanshyambhai Kantilal Panchal who happened to be son of opponent No.1 herein. He has submitted that the said suit bearing HRP Suit No.17 of 1996 was decreed in favour of the applicants on 18.07.2008 and thereafter, the tenant and sub-tenant have preferred first appeal and during the pendency of the appeal, original tenant has died and the appeal qua the tenant has abated on 18.11.2017. It is submitted that the present opponent No.1, mother of sub-tenant Ghanshyambhai, has filed HRP Suit No.782 of 2014 against the applicants seeking declaration and injunction contending that she is residing with her husband since her marriage along with the original tenant – Chandulal. He has submitted that it is alleged by opponent No.1 that due to death of the original tenant, she became direct tenant of the suit premises as per the Bombay Rent Act. It is submitted by the learned advocate for the applicants that in the present suit, she has not disclosed the factum of earlier suit and decree against her son of the suit premises itself. While referring to the documentary evidence on record, he has submitted that the applicants have filed their reply disclosing all true facts and submitted the copy of the judgment and decree dated 18.07.2008 and after hearing both the sides, the Trial Court has also rejected the injunction application filed by opponent No.1 by observing that the judgment and order dated 18.07.2008 is binding to the opponent No.1 and operated res judicata in the present suit. He has submitted that the Appeal from Order which was filed by the plaintiffs against the said order came to be withdrawn as not pressed by her. He has submitted that the Appeal from Order which was filed by the plaintiffs against the said order came to be withdrawn as not pressed by her. He has submitted that thereafter, the Trial Court has framed the issues on 06.08.2016 at that time the applicants have filed application below Exhibit 44 contending that there is binding decree passed in earlier suit, as original plaintiff in collusion with her son, has filed the present suit just to frustrate earlier decree and not come with clean hands and, therefore, the present suit be dismissed. According to him, after hearing both the sides, the Trial Court has rejected the said application. While referring to the application Exhibit 44, he has submitted that the Trial Court has not properly appreciated the facts on law point. It is submitted that the principle of res judicata is applicable in the present case and, therefore, the suit ought to have been dismissed by the Trial Court. He has prayed to allow the present application. He has submitted that the appeals are disposed of by the Appellate Court filed against the judgment and decree passed by the Trial Court. 5.1 Learned counsel for the applicants has relied upon the M/s. Kaushik Co-op. Building Society Vs. N. Parvathamma and others, AIR 2017 SC 1962 . 6. Mr.Manish Shah, learned counsel for the opponents has vehemently opposed the present civil revision application and has submitted that the judgment and decree in the earlier suit has been stayed by the Appellate Court and, therefore, the judgment and decree cannot be executed and in the earlier suit, only defendants were there and the present plaintiff was not joined as party. He has submitted that no provision was cited in the said application, however, during the hearing, it was submitted that it is under Order 7 Rule XI of the CPC which can be seen from para-6 of the impugned order. He has submitted that there is no question of application of principle of res judicata in the present case as the parties to the earlier suit are different from the present suit. He has submitted that the issues are already framed by the Trial Court. He has submitted that there is no question of application of principle of res judicata in the present case as the parties to the earlier suit are different from the present suit. He has submitted that the issues are already framed by the Trial Court. While referring to Section 11 of the CPC, he has submitted that all the ingredients mentioned therein are not fulfilled in the present case and issues have been framed by the Trial Court, no interference is warranted at this stage. It is submitted that the present plaintiff was not party to the earlier suit and no evidence qua her was led in the earlier suit to declare her as sub-tenant and there will be no question of passing contradictory decree in the facts of the present case and the appeal is pending against the earlier order and, therefore, the earlier judgment and decree has not attained finality. 6.1 Learned counsel for the opponents has submitted that the decision cited by the otherside is not applicable in the present case as right of tenancy is involved. 7. In rejoinder, learned counsel for the applicants has submitted that the Appeal from Order which was preferred by the present plaintiffs has been disposed of by the Appellate Court on 18.11.2017. He has submitted that the present civil revision application may be allowed. 8. It is well settled principle by catena of decisions that the High Court, while considering the matter in exercise of its jurisdiction in civil revision application would not reverse the finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view. The exercise of the revisional power is broadly subject to the following conditions; (1) That the decision must be of a court subordinate to the High Court; (2) That there must be a case decided by a subordinate court; (3) No appeal must lie either to the High Court or to any lower appellate court against the decision; (4) In deciding the case, the subordinate court must appear to have – (a) exercised a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction vested in it by law, or (c) acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court in exercising the revisional powers is in its very nature is a truncated power. The width of the powers of the revisional court cannot be equated with the powers of the appellate court. In exercising the legality and the propriety of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. 9. At this juncture, it is worthwhile to reproduce Section 11 of the CPC as under:- 11. Res judicata 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. Explanation I The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation I The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. [Explanation VII The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.] 10. Explanation VIII An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.] 10. In view of the aforesaid provisions, 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. 11. In the case of M/s. Kaushik Co-op. Building Society Vs. N. Parvathamma (supra), the Apex Court has held and observed in paras-6, 7 and 8 as under:- 6. The main point revolves around the principles of res-judicata which is neither against public policy nor res-integra to civil procedure prevailing in our country. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations, as was observed by A.Alagiriswami, J. in Bombay Gas Co. Vs. Jagannath Pandurang, (1975) 4 SCC 690 (para 11). 7. The question of res-judicata is not res integra to our judicial system. The rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time and that the application of the rule by the Courts should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law: Sheoparsan Singh Vs. Ramanandan Prasad Narayan Singh, AIR 1916 PC 78 . Furthermore, it is well settled that the principle of res judicata is applied for the purpose of achieving finality in litigation as laid down by this Court in the case of Sri Bhavanarayanaswamivari Temple Vs. Vadapalli Venkata Bhavanarayana Charyulu, (1970) 1 SCC 673 , relevant paragraph of which is quoted below: "8. … It was observed that the doctrine of res judicata is not confined to a decision in a suit but it applies to decisions in other proceedings as well. Vadapalli Venkata Bhavanarayana Charyulu, (1970) 1 SCC 673 , relevant paragraph of which is quoted below: "8. … It was observed that the doctrine of res judicata is not confined to a decision in a suit but it applies to decisions in other proceedings as well. But how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations one of which is whether that decision determines substantial rights of parties and the other is whether the parties are given adequate opportunities to establish the rights pleaded by them. The doctrine of res judicata is not confined to the limits prescribed in Section 11, Civil Procedure Code. The underlying principle of that doctrine is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter.". (emphasis supplied) 8. To constitute a matter res judicata, as observed by this Court in Syed Mohd. Salie Labbai Vs. Mohd. Hanifa, AIR 1976 SC 1569 : (1976) 4 SCC 780 , the following conditions must be proved: (1) that the litigating parties must be the same; (2) that the subject-matter of the suit also must be identical; (3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction. In the case of Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu, AIR 1977 SC 1268 : (1977) 2 SCC 181 , it was observed by this Court: “One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied.” 11.1 In the aforesaid decision, the Apex Court has held and observed in para-18 as under:- 18.........We are of the considered opinion that it may be true that the Court at initial stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie one. But the Court must also consider that the analogy of res-judicata or of the technical rules of civil procedure is, in cases like the present one, appropriate and the Courts are expected to administer the law so as to effectuate its underlying object. Its opinion in the nature of things would be a prima facie one. But the Court must also consider that the analogy of res-judicata or of the technical rules of civil procedure is, in cases like the present one, appropriate and the Courts are expected to administer the law so as to effectuate its underlying object. Court shall also bear in mind that the basic character of this principle is public policy and preventive as to give finality to the decision of the Court of competent jurisdiction and prevent further litigation. 12. Now, considering the factual aspects of the case, it is found that earlier suit was filed by the original landlord against the tenant as well as sub-tenant, who is son of the present opponent No.1. From the judgment and decree of the previous suit being HRP Suit No.17 of 1996, it appears that there were two defendants; one was original tenant - defendant No.1 – Chandulal Mathurdas Panchal and other was original sub-tenant - defendant No.2 – Ghanshyam Kantilal Panchal. In the said suit, both the defendants have filed separate written statements. The written statement of defendant No.2, who is son of the present opponent No.1 has contended that his father Kantilal Panchal and defendant No.1 are members of one family and his father was residing in the suit premises together and his father and defendant No.1 have jointly taken on rent the suit premises as one family members. It is also his contention that the suit premises was not sufficient to accommodate and convenient for families of defendants No.1 and 2 and, therefore, defendant No.1 hired the another premises. The defendant No.2 has submitted that he paid rent to plaintiff’s mother Sulochnaben Kothari and she issued the receipt of the said payment and he tendered the rent through Money Order which was not accepted by the plaintiff therein. He has stated that he is not in arrears of rent. Thus, from the fact of judgment and decree of earlier suit i.e. HRP Suit No.17 of 1996, it clearly reveals that the son of the present plaintiff has taken forward his tenancy right before the concerned Court which has not been proved and decree has been passed against both the defendants. 13. Now, his mother has filed the suit being HRP Suit No.782 of 2014 for declaration of her tenancy right. 13. Now, his mother has filed the suit being HRP Suit No.782 of 2014 for declaration of her tenancy right. Had there been the present plaintiffs merely residing with the original tenant – Chandulal and opponent No.2 is her son Ghanshyambhai in the suit premises then she might have knowledge of the litigation going on earlier between the son and plaintiff. On that point of time, defendant No.2 of the original suit i.e. Ghanshyambhai who is son of the present plaintiff has not raised his tenancy right in the suit premises and he ought to have pleaded before the Trial Court that his mother is tenant in the suit premises. 14. It is pertinent to note that it is the version of the present plaintiff that she is widow of father of the original defendant No.1 and by virtue of her resistance with the deceased defendant No.1 of earlier suit at the time of death of original tenant she has become tenant in the suit premises. This is nothing but devise to frustrate the decree passed by the competent Court. Had she really staying with her husband with original tenant – Chandulal then the litigation which was going on would have been very much in knowledge of the present plaintiff and her son. But after passing of the decree against the tenant and sub-tenant, she has put forward her claim which is arising out of the relationship in claiming right under the same tenant. Therefore, in this case, the ingredients of Section 11 of the CPC is clearly applicable. 15. It is pertinent to note that while deciding the interim injunction application in the present suit, the Trial Court has held that the principle of res judicata is applicable and, therefore, the Trial Court has rejected the interim injunction application. It was also observed therein that she can avail remedy available under Order 21 Rule 97 of CPC. This observation of the Trial Court is proper. But after change of the officer in the Court, the order below Exhibit 44 has been passed on the ground that the issues have been framed and it can be decided after leading of the evidence. This observation of the Trial Court in the impugned order is erroneous. This observation of the Trial Court is proper. But after change of the officer in the Court, the order below Exhibit 44 has been passed on the ground that the issues have been framed and it can be decided after leading of the evidence. This observation of the Trial Court in the impugned order is erroneous. From the facts of the case, it is crystal clear that the principle of res judicata is applicable and if the person has alternative remedy available under Order 21 Rule 97 of the CPC, then, subsequent suit ought to have been rejected under Order 7 Rule XII(d). Of course in the application at Exhibit 44, the applicants have not mentioned any section of the CPC. However, when the principles of res judicata is applicable in a given case, then, the Court has to reject the plaint. But in this case, the Trial Court has not considered all these aspects while deciding the application at Exhibit 44 and dismissed the application on the ground that the issues have been framed regarding res judicata and it requires evidence. The Trial Court has committed error of facts and law in rejecting the application. Therefore, impugned order of the Trial Court passed below Exhibit 44 warrants interference by this Court. 16. Hence, in the facts and circumstances of the case, the application is allowed. The order dated 11.12.2017 passed by the learned Judge, Small Causes Court No.9, Ahmedabad below application Exhibit 44 in HRP Suit No.782 of 2014 is hereby quashed and set aside. The application filed by the applicants for rejection of the plaint on the ground of res judicata is hereby allowed. The suit being HRP Suit No.783 of 2014 stands dismissed under Order 7, Rule XI of the CPC. It is clarified that the plaintiffs herein may pursue remedy available under Order 21 Rule 97 of the CPC or any other alternative remedy available under the law. Rule is made absolute. No order as to costs.