S. B. SINHA, C. J.

( 1 ) A learned single Judge of this Court by an order dated 3-8-2001 has referred the matter - whether the question of res judicata is bar to the suit created by any law for the time being in force within the meaning of order 14 Rule 2 (2) (b) of the Code of Civil procedure, 1908 (for short the Code ). FACTS:

( 2 ) THE plaintiff-opposite party filed the suit for injunction. It was contended that earlier, Original Suit No. 655 of 1980 was filed by the vendors of the defendants- petitioners herein on the file of the Munsif magistrate, Rajampet for declaration of title and injunction for the self-same property. When the suit was dismissed, an appeal - being A. S. No. 40 of 1985, was preferred thereagainst which was allowed by an order dated 28-7-1986. Assailing the same, second appeal was filed before this Court which was marked as S. A. No. 58 of 1987 and the same was dismissed on 31-8-1998.

( 3 ) THE contention of the defendants- petitioners herein, therefore, is that o. S. No. 70 of 1992 cannot be entertained as the same is barred under the principles of res judicata. For determination of the said issue as a preliminary one, an application was filed by the petitioners herein which was marked as I. A. No. 743 of 2000. By reason of the impugned order dated 27-9-2000 the said application was dismissed. Aggrieved thereby the present civil revision petition has been filed.

( 4 ) THE learned referring Judge having taken into consideration the decisions cited on behalf of the petitioners herein viz. , kodavandla Imam Saheb v. Shaik Nayab Rasool, M/s. Femina Handloom of India v. M/s. M. R. Verma and Sons and Durg Rajnandgaon Grameena Bank v. Suresh Kumar shukla and others on the one hand and the decision of the Full Bench of this Court in veeranna v. Sayamma, Smt. Laxmi Mani Dasi v. Manik Chandra Das and Mary v. Mathew joseph was of the view that: in the light of the object of Section 11 c. P. C. , it cannot be said that this doctrine is always a pure question of law. In fact, it is a mixed question of fact and law. The Courts repeatedly held that the plea of res judicata has to be raised as a plea and the pleadings are to be placed before the Court and it has to be established that a particular suit is barred by res judicata and hence it cannot be said that the bar imposed under Order 14 Rule 2 (2) (b) C. P. C. is applicable to such a case. QUESTION:

( 5 ) HOWEVER, the learned Single Judge, in view of the decision of another learned single Judge in Kodavandla Imam Saheb s case referred the question to the Bench. FINDINGS:

( 6 ) ISSUES in terms of Order 14 Rule 1 arise for determination when a material proposition of fact or law is affirmed by one party and denied by the other. Issues although broadly can be sub-divided under two heads in terms of Order 14 Rule 1 (1) into issues of facts and issues of law, there can be an issue having mixed question of fact and law and determination of the fact only would give rise to a determination of1. 1999 (5) ALT 2. 2. AIR 1993 Ker. 210. 3. (1999) 1 SCC 243. 4. 1958 ALT 364 = 1958 (1) An. W. R. 307 = AJR 1958 A. P. 363 (F. B. ). 5. AIR 1991 Cal. 231. 6. AIR 1992 Ker. 305. the question of law and the determination of the question of law must precede the determination on facts.

( 7 ) ORDER 14 Rule 2 of the Code must be construed having regard to the proposition contained in Order 14 Rule 1. Sub-rule (1) of rule 2 of Order 14 of the Code reads: notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce Judgment on all issues.

( 8 ) SUB-RULE (2) of Rule 2, however, states: where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (A) the jurisdiction of the Court, or (B) a bar to the suit created by any law for the time being in force, and

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