Hon’ble Sabhajeet Yadav, J.—A short question arises for consideration is that as to whether on a question raised by defendant in suit, that suit is barred by principle of res-judicata and the question should be decided as preliminary issue first, it is obligatory upon the trial Court to decide it as preliminary issue first by postponing the settlement of other issues involved in the suit?

2. The brief facts of the case are that originally there was only one plot No. 9 at Loni Road Industrial Area, Site 2, Ghaziabad which was allotted to the plaintiffs-respondents in the year 1969, but since the plaintiff did not raise any construction and did not start the industrial unit as such the lease itself was cancelled on 31.1.1972. After cancellation of the lease the original plot No. 9 Loni Road Industrial Area, Site 2, Ghaziabad was divided into 2 plots i.e. plot Nos. 9 and 9-A. The plot No. 9 ad-measuring an area of 15965 sq. yards after division of original plot No. 9 allotted to M/s Hind Forge Private Limited. It is further stated that plaintiff-respondent was required to enter into a compromise in regard to allotment of said plot with U.P.S.I.D.C. under certain terms and in a meeting of Board of Directors of U.P. S.I.D.C. held on 30.3.1977 a resolution was passed for such allotment of remaining portion of original plot No. 9 ad-measuring an area of 24399 sq. yards, but the resolution was never given effect to as the plaintiff-respondent declined to take any interest in effectuating the said compromise, thus the resolution dated 30.3.1977 became only a dead letter.

3. It is stated that after lapse of about 29 years a frivolous writ petition was filed by the plaintiff-respondent before this Court which was numbered as Civil Misc. Writ Petition No. 68650 of 2006. In this writ petition the advertisement dated 8.11.2006 was challenged by means of which U.P. S.I.D.C. had advertised for allotment of plot No. 9A, Site 2, Loni Road, Ghaziabad. A further relief was sought for by the plaintiff-respondent in the writ petition that present petitioner/defendant in suit and other respondents of the writ petition be restrained from interfering with the possession of the plaintiff-respondent over plot No. 9-A, Site 2, Loni Road, Ghaziabad.

4.The aforesaid writ petition was however, dismissed by the Division Bench of this Court vide judgment and order dated 5.1.2007 with finding that the lease of plot No. 9A, Site 2, Loni Road, Ghaziabad in favour of plaintiff-respondent was cancelled on 30.1.1972 as the plaintiff-respondent had failed to comply with the terms and conditions of the lease deed and further the compromise dated 30.3.1977 was never given effect to. The order dated 5.1.2007 passed by this Court in aforesaid writ petition is on the record as Annexure 1 to the writ petition. It is further stated that when the plaintiff-respondent did not succeed in the writ petition then on frivolous grounds the suit in question was instituted on 9.3.2007 in which precisely the questions were raised which were earlier raised in the aforesaid writ petition, a copy of the plaint of Original Suit No. 400 of 2007 is on the record as Annexure 2 to the writ petition. The defendant-petitioner filed a written statement raising the question of res-judicata alongwith other incidental questions. The copy of same is on record as Annexure 3 to the writ petition. It is also stated that petitioner had filed all the relevant documents including copy of Civil Misc. Writ Petition No. 68650 of 2006 and order of Division Bench of this Court dated 5.1.2007 passed in the said writ petition. But the trial Court has passed the impugned order dated 17.10.2008 refusing to decide the question of res-judicata as preliminary issue first on the ground that the issue has already been decided against the petitioner while disposing of application for temporary injunction vide order dated 20.11.2007, against the said order F.A.F.O. No. 3390 of 2007 is pending before this Court a