The issue of res-judicata is a mixed question of law and fact and cannot be decided under Section 9-A of the C.P.C.

1. The Respondent/plaintiff has filed suit bearing RCS No.79/2008 against the present petitioner and others for declaration of ownership and perpetual injunction in respect of 5 hectares 16 ares portion from Gat No.688, old S.No.207 of village Dapka, Tq.Mukhed.

2. The petitioner by filing the Written Statement denied the claim of the plaintiff. The petitioner averred that the earlier litigation between the plaintiff No.1's father and the petitioner would operate as res-judicata within the meaning of Section 11 of the C.P.C. The Respondents had also filed application Exh.5.

3. The petitioner filed an application purportedly invoking Section 9-A of the C.P.C. for framing the issue of resjudicata vis-a-vis jurisdiction. The said application was 'filed' by the Court. Aggrieved thereby, the present petition.

4. Earlier the petitioner had also filed an application requesting the trial Court to frame issue U/s 11 of the C.P.C. and decide the said issue before hearing of temporary injunction application. The same is also rejected.

5. Mr.Kulkarni, learned counsel for the petitioner submits that the present suit filed by the plaintiff is barred by the principle of resjudicata in view of the judgment and decree passed in previous suit bearing RCS No.60/1975. The said suit was filed by the present petitioner against the Respondent No.1's father and in the said suit, the petitioner has been held and declared owner and in possession of the suit land. The said judgment is confirmed upto the High Court. The learned counsel submits that the principle of res-judicata debars the Court from exercising its jurisdiction and the said issue will be an issue concerning the jurisdiction of the Court and as such is required to be framed U/s 9-A of the C.P.C. as a preliminary issue. The learned counsel relies on the judgment of the Apex Court in a case of "Bhanu Kumar Jain Vs. Archana Kumar and another" reported in AIR 2005 Supreme Court 626(1). The learned counsel also relies on the judgment of the learned Single Judge of this Court in a case of "Thomas M.Periera and another Vs. Anna R. D'Silva and others" reported in 1992 B.C.J. 38, to contend that an objection U/s 12 in effect raises a question of jurisdiction to maintain the suit. If the suit is not maintainable, the Court will have no jurisdiction to go on with the suit and as such will have to be decided as a preliminary issue U/s 9-A of the C.P.C.

6. The learned counsel further submits that when an objection to the jurisdiction is raised, it is duty of the Court to frame the said issue as a preliminary issue U/s 9-A of the C.P.C., more particularly, as temporary injunction application is pending. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Arjun Dada Gadage Vs. Mallappa Gurappa Chougule and another" reported in AIR 2003 Bombay 441 and in a case of "Radhakishin N. Advani Vs. Mrs. Sheila Gobind Mirchandani and another" reported in AIR 1977 Bombay 35(1).

7. Mr.Deshpande, learned counsel for the Respondent/plaintiff submits that while dismissing the earlier application, the Court has observed that the boundaries of the suit property in the earlier suit appears to be different as that of the present suit and it would require evidence to be led by the parties.

8. According to the learned counsel the issue of jurisdiction as contemplated U/s 9-A of the C.P.C. is question of jurisdiction as contemplated U/s 9 of the C.P.C. The learned counsel relies on the judgment of the Apex Court in a case of "State of A.P. Vs. Manjeti Laxmi Kantha Rao (Dead) by L.Rs. and others" reported in (2000) 3 Supreme Court Cases 689 and the judgment of the Apex Court in a case of "Konda Lakshmana Bapuji Vs. Govt. of A.P. and others" reported in (2002) 3 Supreme Court Cases 258. It is only if the jurisdiction of the Court is expressly or impliedly barred by the other statute then only the said question can be considered U/s 9-A of the C.P.C. The learned counsel con