IMPORTANT POINT
The main legal point established is that the question of res judicata is a mixed question of law and facts, and cannot be tried as a preliminary issue. Evidence is crucial in deciding the applicability of res judicata.

JUDGMENT :

Heard learned counsel for the parties.

2. This Civil Miscellaneous Application has been filed under Article 227 of the Constitution of India for setting aside the order dated 28.11.2017 in Title Suit No. 19 of 2013 passed by learned Sub-Judge-3, Dalsingsarai whereby and whereunder the application dated 10.02.2014 under Section 11 of Code of Civil Procedure, 1908 filed by the petitioners has been disposed of observing that the issue raised shall be decided at the time of final decision in the suit.

3. Respondent Nos. 1 to 6 are plaintiffs who have filed Title Suit No. 19 of 2013 for declaration of title and possession of the plaintiffs over the suit land. On receiving summons in the suit, the petitioners appeared and filed written statement and thereafter filed a petition dated 10.02.2014 under Section 11 C.P.C. praying to dismiss the suit as barred by res judicata in view of the earlier judgment and decree dated 29.12.1989 in Title Suit No. 52 of 1981 passed by learned Munsif, Dalsingsarai whereby and whereunder the title of the petitioner was declared which was affirmed by the judgment and decree dated 31.07.1993 in Title Appeal No. 12 of 1990 and Second Appeal No. 644 of 1993 filed by the plaintiffs of the present suit was also dismissed vide judgment dated 24.04.2013 (as modified by order dated 12.02.2014) by this Court. The said petition was opposed by the plaintiffs and was dismissed by the learned trial Court vide the impugned order dated 28.11.2017.

4. Learned senior counsel for the petitioners submits that plaintiffs and defendant No. 2 were parties in Title Suit No. 52 of 1981, Title Appeal No. 12 of 1990 and Second Appeal No. 644 of 1993 and the subject matter of the said Title Suit No. 52 of 1981 is identical to the present suit. It is further submitted that the previous Title Suit No. 52 of 1981 had been decided by the Court of competent jurisdiction and the judgment and decree of the said Title Suit No. 52 of 1981 was confirmed in Title Appeal No. 12 of 1990 and the same was reconfirmed in Second Appeal No. 644 of 1993 and the condition of Section 11 of C.P.C. is satisfied. Learned senior counsel for the petitioners submits that there is possibility of two inconsistent decree might come into existence if the provisions of Section 11 C.P.C. is not applied at this stage.

5. Learned senior counsel for the petitioners further submits that the learned trial Court without considering the legal provisions that on a question of res judicata, the preliminary issue needs to be framed disposed of the application which is not justified and is wholly erroneous which requires interference by this Court.

6. On the other hand, learned counsel for the respondents submits that there is different area and boundary of the suit land and other persons have also been made parties in the suit and the principle of res judicata shall not apply in the facts and circumstances of the case and the learned trial Court has rightly held that issue of res judicata is a mixed question of law and facts which can be decided on the basis of the evidence to be brought on record. Accordingly, at this stage, the Suit cannot be decided by hearing on the issue of res judicata as preliminary issue.

7. Order XIV Rule 2 of CPC has been substituted by Central Act No. 104 of 1976, whereby the Court is mandated to pronounce Judgment on all issues, even though the suit can be disposed of on a preliminary issue. After the amendment, discretion has been given to the Court by expression ‘may’ used in sub-rule (2) to try the issue relating to the jurisdiction of the Court i.e. territorial and pecuniary jurisdiction, or a bar to the suit created by any law for the time being in force i.e. to bar a suit before a Civil Court. The intention to substitute Rule 2 is the speedy disposal of the lis which oust either the jurisdiction of the Court or bars the plaintiff to sue before the Civil Court.

8. The Hon’ble Supreme Court in a judgment reported as Ramesh B. Des