Thomas P.Joseph, J.

1. The challenge in this civil revision is against the order passed by the learned Principal Munsiff, Thiruvananthapuram in O.S.No.1261 of 2004 closing the suit for the reason that it is barred by res judicata.

2. Petitioner/plaintiff filed the suit for a declaration of fixation of boundary, mandatory injunction, etc. The 1s' respondent filed written statement contending that the suit is barred by res judicata in view of the decision in O.S No 1682 of 1999 filed by petitioner against the 1st respondent, also for fixation of boundary and prohibitory injunction and which was dismissed on merit in the year, 2003 which has become final. The 1st respondent raised other contentions as well on the merit of the case pleaded by the petitioner. No attempt was made to raise a preliminary issue regarding res judicata if at all it is capable of a decision under Order XIV, Rule 2 of the Code of Civil Procedure (for short "the Code"). Instead the suit was posted for trial in the list and on that day, petitioner was examined through the Advocate Commissioner. After closing of evidence of petitioner the case was posted for defence evidence. At that stage, learned Munsiff pass