ORDER 1. This petition has been filed by the petitioner/defendant No.4 under section 115 of Code of Civil Procedure, 1908 against the order dated 6.9.2022, passed by the learned Additional District Judge, Badnawar, District-Dhar (M.P.) in Civil suit No.RCS-A/39/2019, whereby the application under Order VII rule 11 r/w section 151 of the Code of Civil Procedure, 1908 has been rejected, except with regard to the valuation and Court fees. 2. In brief, the facts of the case are that the respondents/plaintiffs filed a civil suit for declaration, injunction and possession in respect of the agricultural lands situated at Village Kherwas, District-Dhar. In the aforesaid suit, an application under Order VII rule 11 was filed by the petitioner/defendant No.4 on the ground that the issues raised by the plaintiffs in the suit has already been decided by the Writ Court in W.P. No.15202/2018 dated 24.10.2018 wherein, this Court had also given an option to the plaintiffs to file a civil suit and after the counsel appearing for the plaintiffs in the said writ petition gave up his right to file a civil suit, the Writ Court has proceeded further and decided the matter on merits. Thus, it is submitted that the civil suit was clearly barred by the order passed by this Court as the issues have already been decided. 3. Shri V. K. Jain, learned senior counsel for the petitioner has also submitted that although the aforesaid order dated 24.10.2018 was challenged in W.A. No.192/2019, however, the same was dismissed as withdrawn on 20.3.2019 with liberty to file a civil suit and thereafter, a review petition, R.P. No.554/2019 was also filed which was disposed of by this Court on 16.5.2019 further directing that the civil suit shall be decided on merits, on the basis of evidence adduced by the parties, in accordance with law. 4. Senior counsel appearing for the petitioner has submitted that even though the aforesaid two orders have been passed by the Division Bench in Writ Appeal and in the Review petition, it cannot be said that the order passed by the Writ Court has been set aside by the Writ Appellate Court and thus, the aforesaid order passed by the Writ Court is binding on the plaintiffs and the suit is barred by the principles of Res Judicata. 5. 5. Shri Ashok Garg, learned Senior counsel appearing for the respondents, on the other hand, has opposed the prayer and it is submitted that the orders passed by the Writ appellate Court and in the review petition are binding on the Civil Court and in the review petition, this Court has clarified that the civil suit will be decided on merits, on the basis of the evidence adduced by the parties, and in accordance with law meaning thereby, that the civil suit has to be contested on merits only and it cannot be dismissed on technical grounds. 6. Senior counsel has further submitted that the order passed by the Writ Court in W.P. No.15202/2018 dated 24.10.2018 has already been merged in the order passed by the Writ Appellate Court and the review petition and thus, is not binding on the parties. 7. Senior counsel appearing for the petitioner, in rebuttal, has relied upon the decisions rendered by the Supreme Court in the case of T. Arivandandam v. T.V. Satyapal and another reported as (1977) 4 SCC 467 , Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and another reported as (2008) 11 SCC 753 , Gulabchand Chhotalal Parikh v. State of Gujarat, reported as (1965) 2 SCR 547 , Union of India v. Nanak Singh reported as (1968) 2 SCR 887 , Government of Andhra Pradesh v. M. Narasimha Murthy reported as 1990 (Supp) SCC 746, Chandi Prasad and Others v. Jagdish Prasad and others, reported as (2004) 8 SCC 724 , State of Kerala and Another v. Kondottyparambanmoosa and others, reported as (2008) 8 SCC 65 . 8. Heard counsel for the parties and perused the record. 9. From the record it is found that the respondents/plaintiffs had earlier filed W.P. No.15202/2018 being aggrieved by the order dated 5.5.2016, passed by the respondent/Madhya Pradesh Udyog Vikas Nigam Ltd. in respect of the disputed land situated at Village Kherwas, Tehsil- Badnawar, District- Dhar, in all, ad-measuring 38.238 hectares. The aforesaid petition was disposed of by this Court on 24.10.2018, the relevant paras of which are as under :-- “10. The aforesaid petition was disposed of by this Court on 24.10.2018, the relevant paras of which are as under :-- “10. Since the disputed questions of facts are involved in this petition, therefore, at the very outset, an option was given to the petitioner as to whether he wish to withdraw the petition with liberty to establish his right over the subject land before the competent civil Court, but Shri Vijay Assudani, learned counsel appearing for the petitioner, submitted that the petitioner is not interested in filing a civil suit, but he will try to establish his right and title over subject land in this writ petition. Since the petitioner has given up his right to approach the civil Court hence, this writ petition has been heard on merit at length. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 19. Undisputedly, the subject land is recorded in the name of State Government since the year 1951 and the petitioner had never raised any objection in respect of such entries. He could have initiated the proceedings under the M.P. Land Revenue Code or could have filed the civil suit seeking declaration of right and title. He remained silent for more than 60 years and when the subject land has been allotted to respondent No.2 and 3, he approached this Court by way of present writ petition seeking compensation. Since the petitioner has failed to establish his right and title over the subject land, therefore, he is not entitled for any compensation. Orders dated 5.5.2016 and 10.8.2017 cannot be quashed at the instance of the petitioner for want of right and title over the subject land. Since the subject land is recorded in the name of the State Government, therefore, the State Government is competent to allot the same in favour of respondents No.2 and 3. The petition is misconceived and deserves to be dismissed.” (Emphasis supplied) 10. It is also not in dispute that against the aforesaid order passed by the Writ Court, the respondents/plaintiffs had preferred W.A. No.192/2019 which was disposed of by this Court as under :-- “Learned counsel for the appellant prays for withdrawal of the present Writ Appeal with liberty to file a Civil Suit. Prayer allowed. The present Writ Appeal is dismissed as withdrawn with aforesaid liberty. The Civil Suit will be decided in accordance with law.” 11. Prayer allowed. The present Writ Appeal is dismissed as withdrawn with aforesaid liberty. The Civil Suit will be decided in accordance with law.” 11. The aforesaid order passed in the writ appeal on 20.3.2019 was also the subject matter of R.P. No.554/2019 before the Division Bench who, vide its order dated 16.5.2019 passed the following order :-- “The present review petition is disposed off with consent of the parties as there is already a direction given by this Court that the Civil Suit will be decided in accordance with law. No further clarification is required. The Civil Suit will be decided on merits on the basis of the evidence adduced by the parties in accordance with law.” 12. Admittedly, after the aforesaid order was passed, a civil suit has been filed by the respondents/plaintiffs in the District Court, Badnawar seeking the same relief as was sought in the Writ petition W.P. No.15202/2018 and in the aforesaid suit filed by the respondents, an application under Order 7 rule 11 of CPC was filed by the petitioner/defendant No.4, and apart from merits, it has also been averred that the suit is barred by the principles of res judicata under section 11 of the CPC. Senior counsel for the petitioner has argued only on this ground that the suit itself is not maintainable in the light of the detailed order dated 24.10.2018 passed by this Court on the merits of the case in W.P. No.15202/2018. 13. Now, the only question which falls for the consideration of the Court is whether the civil suit can still be maintained in the light of the aforesaid order passed by this Court in W.P. No.15202/2018 wherein, the lis between the parties has already been decided. and also in the light of the orders passed by the Division Bench in W.A. No.192/2019 and in R.P. No.554/2019, as the Division Bench has allowed the respondents to withdraw the appeal with liberty to file a civil suit and it was directed that the civil suit shall be decided in accordance with law, and in the review petition for clarification of the aforesaid order passed in W.A. No.192/2019 where it is also directed that the civil suit will be decided on merits, on the basis of evidence adduced by the parties in accordance with law. 14. 14. In other words, the question of law which falls for consideration can also be summarized as, “whether dismissal of the writ petition on merits and subsequent withdrawal of Writ Appeal against the aforesaid order passed by the Writ Court as also the order passed in review petition by the Division Bench would still entitle a party to file a civil suit when the lis between the parties is already decided by the Writ Court.” Res judicata. 15. At this juncture, it would be apt to refer to the decisions relied upon by the counsel for the petitioner. In the case of Dadu Dayalu Mahasabha, Jaipur (supra), this Court has held as under :- “11. The matter came up before this Court by way of Civil Appeal No. 299 of 1987 (arising out of SLP ) No.7600 of 1983) and by a judgment and order dated 2nd February, 1987 a Division Bench of this Court allowed the said appeal stating :-- “Special leave granted. The appeal is heard. Since the High Court has not and could not have in the circumstances of the case reversed the finding of the trial Court and the first appellate Court that the plaintiff was not in possession of the suit property on the date of the filing of suit, it could not have reversed the decree passed by the First Appellate Court and made a decree for injunction for which suit has been brought. We, therefore, set aside the judgment and decree of the High Court and restore the judgment and decree of the first appellate Court. This judgment will not come in the way of the plaintiff/respondent filing a suit for possession, if he is so advised.” 12. In the fresh suit, the first respondent also impleaded ‘Gaddi Dadu Dawara Kalanur’ through himself as the second plaintiff. Appellants were arrayed as defendants. In the said suit a decree for possession of the properties mentioned in paragraph 5 of the plaint (consisting of 15 items of properties) was prayed for. 13. The learned trial judge by his judgment and order dated 11th February, 2003 opined that the said suit was barred by the principles of res judiciata, the issues arising therein being directly and substantially in issue between the parties in the previous suit as well. 13. The learned trial judge by his judgment and order dated 11th February, 2003 opined that the said suit was barred by the principles of res judiciata, the issues arising therein being directly and substantially in issue between the parties in the previous suit as well. It dealt with in details as to how the causes of actions in both the suits were the same. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 20. Rightly or wrongly a decision was arrived at that the first respondent was held to be not entitled to hold the Gaddi and management of the same. A legal right of the appellant with regard thereto was found favour with the first appellate Court. On the aforementioned backdrop the implication of the observations of this Court must be noticed and considered. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 22. The judgment of a Court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior Court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 27. However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably section 11 of the Code would apply. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 35. The issue indisputably was the claim of entitlement to Gaddi by the first respondent and a plea contra thereto raised by the appellants. Once the issue of entitlement stood determined, the same would operate as res judicata. We may notice some precedents for appreciating the underlying principles thereof. Section 11 of the Code, thus, in view of the issues involved in the earlier suit, the provisions thereof shall apply.” (Emphasis supplied) 16. In the case of Gulabchand Chhotalal Parikh (supra), it has been held as under :-- “18. Several issues were framed. We may notice some precedents for appreciating the underlying principles thereof. Section 11 of the Code, thus, in view of the issues involved in the earlier suit, the provisions thereof shall apply.” (Emphasis supplied) 16. In the case of Gulabchand Chhotalal Parikh (supra), it has been held as under :-- “18. Several issues were framed. Issue No. 8A was : “Is the suit barred by res judicata in view of the High Court’s judgment in Civil Applications No. 260, 261 and 376 of 1952 ?” The trial Court held on this issue that judgment operated as res judicata in the suit. It recorded its findings on the other issues as well, but we are not concerned with those findings. It dismissed the suit. 19. On appeal by the appellant, the District Judge agreed with the Trial Court that the suit was barred by res judicata in view of the judgment of the High Court on the writ petition. He accordingly dismissed the appeal. He also recorded his findings on the other points urged before him. 20. On second appeal, the learned Single Judge of the High Court agreed with the Courts below that the decision of the High Court on the question whether the plaintiff was absolved from liability under the surety agreement must be regarded as res judicata and could not be opened in the suit. He further considered the question whether in the circumstances of the case the appellant was entitled to the injunction prayed for and held that it was open to the appellant to maintain the suit for the determination of the amount due from him as that had not been considered and determined in the writ petition. He therefore allowed the appeal, set aside the order of the District Judge and passed a decree in favour of the appellant declaring that he was liable to pay the amount due under the surety agreement less the amount paid by the contractor and such amount as had been recovered by the State by sale of the property of the contractor attached under condition No. 8. He further ordered issue of an injunction restraining the State from enforcing the liability for the amount in excess of the amount declared to be due from the appellant. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 60. He further ordered issue of an injunction restraining the State from enforcing the liability for the amount in excess of the amount declared to be due from the appellant. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 60. As a result of the above discussion, we are of opinion that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial. 61. We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under arts. 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle ,of the finality of decisions after full contest. We therefore hold that on the general principle of res judicata, the decision of the High Court on a writ petition under art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 63. We therefore dismiss this appeal with costs.” (Emphasis supplied) 17. In the case of Nanak Singh (supra), it has been held as under:-- “4. The first question which falls to be determined in this appeal is whether the judgment of the High Court in the writ petition operated as res judicata in the Civil Suit filed by Nanak Singh. Nanak Singh, it may be recalled, claimed relief on two alternative grounds-(1) infringement of the protection under Art. 311 of the Constitution; and (2) absence of authority in the Officer who terminated his employment under r. 5 of the Central Civil Service’, (Temporary Service) Rules, 1949. Nanak Singh, it may be recalled, claimed relief on two alternative grounds-(1) infringement of the protection under Art. 311 of the Constitution; and (2) absence of authority in the Officer who terminated his employment under r. 5 of the Central Civil Service’, (Temporary Service) Rules, 1949. Each ground, if successful, was sufficient to support an order in his favour. Gurdev Singh, J., decided both the grounds in favour of Nanak Singh. The High Court reversed the judgment of Gurdev Singh, J., and dismissed the petition filed by Nanak Singh : thereby the High Court must be deemed to have rejected both the grounds on which the petition was founded. On the plea that the order of termination of hi.-, employment amounted to dismissal, the High Court gave detailed reasons and observed that by the termination of his employment Nanak Singh was not visited with any punishment. The second plea about the authority of Mr. Kane also must be deemed to have been negatived by the High Court, for the High Court could not, without reversing the judgment of Gurdev Singh, J., have dismissed the petition. It is true that in the judgment of the Court of Appeal some obscure statement has been made, and it is difficult to appreciate the true purport thereof. But what operates as res judicata is the decision and not the reasons given by the Court in support of the decision. We are unable to agree with counsel for Nanak Singh, that the High Court reserved to Nanak Singh the right to agitate the question about the authority of Mr. Kane in a separate suit. There is no such express reservation, and it cannot be implied, for such an implication is plainly inconsistent with the final order passed by the High Court. Even assuming that the High Court was in error in holding that the appeal could be decided only on the first point, the order dismissing the petition must still operate as res judicata in respect of both the points on which the petition was founded. 5. Even assuming that the High Court was in error in holding that the appeal could be decided only on the first point, the order dismissing the petition must still operate as res judicata in respect of both the points on which the petition was founded. 5. This Court in Gulabchand Chhotalal Parikh v. State of Gujarat (1) observed that the provisions of s. 11 of the Code of Civil Procedure are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Art. 226 or Art. 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decision after full contest. The Court in Gulabchand’s case (1) left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided.” (Emphasis supplied) Doctrine of Merger 18. So far as the Doctrine of Merger is concerned, in the case of Chandi Prasad and Others (supra), it has been held as under :-- 10. Where a statutory appeal is provided for, subject, of course to the restrictions which may be imposed, it is a continuation of suit. It is also not in dispute that when a higher forum entertains an appeal and passes an order on merit , the doctrine of merger applies. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. It is also not in dispute that when a higher forum entertains an appeal and passes an order on merit , the doctrine of merger applies. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. 24. It is trite that when an appellate Court passes a decree, the decree of the trial Court merges with the decree of the appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate Court supersedes the decree of the trial Court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate Court affirms, modifies or reverses the decree passed by the trial Court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. [See V.M. Salgaocar and Bros. (P) Ltd. v. CIT.] xxxxxxxxxxxxxxxxxxxxxxxxxxxxx 28. However, when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply. [See Raja Mechanical Company Pvt. Ltd. v. CCE]. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 30. Upon analyzing when a decree or order becomes enforceable vis-a-vis the definition of ‘decree’ in section 2(2) of the Code this Court observed that when a dismissal of an appeal takes place on the ground of its being time barred, no decree is passed. (Emphasis supplied) 19. Again in the case of Kondottyparambanmoosa and others (supra), it has been held as under:-- “24. Keeping these principles as enunciated by this Court in the aforesaid three decisions in mind and applying the said principles in the facts of this case, we have no hesitation in our mind to conclude that the High Court in the impugned order did not at all consider that in the earlier revision order of the High Court, revisional application was rejected not on merits but only on the ground of delay. Therefore, it must be held that since earlier revision application was not rejected on merits, the said order rejecting the same on the ground of delay cannot be said to be the order of affirmance and that being the position, we must hold that since the earlier revision petition was not decided on merits, the doctrine of merger cannot be applied to the facts and circumstances of the present case. In this connection an observation made by this Court in the case of Chandi Prasad and Others v. Jagdish Prasad and Ors. (2004) 8 SCC 724 , needs to be reproduced which is as under :-- “When an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.” (Emphasis supplied) 25. In this view of the matter, we are, therefore, of the opinion that the doctrine of merger would only apply in a case when a higher forum entertains an appeal or revision and passes an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. In our view, mere rejection of the revision petition on the ground of delay cannot be allowed to take away the jurisdiction of the Board, from whose order forms a subject matter of petition and section 85(9) of the Act confers powers on the Board to reopen the case if such grounds for reopening the case are shown to exist. 26. For the reasons aforesaid, we are unable to accept the view expressed by the High Court to the effect that the order passed by the Board dated 13th of June, 1985 ceased to exist when the revision petition against the said order was rejected on the ground of delay only. Therefore, we are of the view that the order of the Board dated 13th of June, 1985 could not be merged with the order of the High Court passed in revision case. Such being the position, it must be held that the Board under section 85(9) of the Act was entitled to reopen the case in compliance with section 85(9) of the Act.” (Emphasis supplied) 20. Such being the position, it must be held that the Board under section 85(9) of the Act was entitled to reopen the case in compliance with section 85(9) of the Act.” (Emphasis supplied) 20. A perusal of the aforesaid decisions of the Supreme Court clearly reveals that an order passed in writ petition would certainly operate as res judicata and the party would be precluded from filing a civil suit seeking the same relief. 21. Even otherwise, this Court is of the considered opinion that a party’s right under Order VII rule 11 of the CPC or under any other provision of CPC or any other law to which it is amenable, cannot be curtailed in any manner as this Court is of the view that it is one thing to say that a party is not entitled to any particular relief under any particular law and it is another thing to say that the party shall not claim any particular relief under any particular law. In the present case, what has been argued before this Court is that the order passed in the review petition that the Civil Court shall decide the matter after evidence is led by the parties would mean that the application under Order VII rule 11 of CPC would not be maintainable, but this Court does not find any force in this submission, as a perusal of the order passed by this Court in R.P. No.554/2019 also reveals that this Court has simply stated that the Civil Suit will be decided on merits on the basis of the evidence adduced by the parties, in accordance with law, and it was observed thus, “The present review petition is disposed off with consent of the parties as there is already a direction given by this Court that the Civil Suit will be decided in accordance with law. No further clarification is required. The Civil Suit will be decided on merits on the basis of the evidence adduced by the parties in accordance with law .” 22. No further clarification is required. The Civil Suit will be decided on merits on the basis of the evidence adduced by the parties in accordance with law .” 22. A perusal of the aforesaid order also reveals that this Court has clearly stated that no further clarification is required and the matter shall be decided in accordance with law, and when a matter is to be decided in accordance with law, it means that all the provisions of law would be applicable in the said proceedings, and it cannot be said that any particular provision of law would not be applicable in the light of the order passed by this Court and in such circumstances, when the order passed by the writ Court has not been reversed on merits, and the writ appeal against the same has been withdrawn, and the Review Petition has also been disposed of holding that no clarification is required in the writ appellate Court’s order, the doctrine of merger would not be applicable and the order passed by the writ Court on merits would still survive and mere liberty sought in the writ appeal would not have the effect of undoing of the order passed by the writ Court on merits. 23. This Court is also of the considered opinion that the impugned order cannot be sustained in the eyes of law as it curtails the right of the defendant No.4 to raise a ground under Order VII rule 11 of the CPC on the basis of the orders passed by this Court in writ appeal and review petition, which can never be the intention of this Court. 24. As a result, the application filed by the petitioner/defendant No.4 under Order VII Rule 11 of the CPC is allowed only on the ground of the suit being barred by the principles of res judicata and thus, the suit is hereby dismissed. 25. With the aforesaid observations, civil revision stands allowed. No costs.