1. After hearing the learned counsel for the parties I am of the view that the Court below exceeded its jurisdiction in treating issue No. 4 as a preliminary issue. Issue No. 4 "Whether the suit is barred by principle of res judicata? OPD" has been ordered to be treated as preliminary by the impugned order. The application for treating issue No. 4 as preliminary was filed after the issues were framed. As many as six issues have been framed on meirts.

2. Issue No. 4 was sought to be treated as a preliminary issue on the basis that a decree for specific performance was passed in favour of the defendant by judgment and decree of this Court dated 22-3-1983 which would operate as res judicata between the parties. The undisputed facts are that one house was allotted to Ram Lal by the Rehabilitation Department. Half portion of the same was agreed to be sold to Sohan Lal and possession of that half portion was delivered to him under the agreement to sell. When Ram Lal failed to execute the sale deed. Sohan Lal filed a suit for specific performance of the contract. The trial Court decreed the suit for specific performance but the lower Appellate Court dismissed the suit after record