The court ruled that an order concerning res-judicata cannot be challenged after significant delay, emphasizing the principles of estoppel by conduct and the need to maintain judicial efficiency.

ORDER

1. The present petition is filed under Article 227 of the Constitution of India challenging the orders dated 13.2.2020 and 30.7.2022 passed by Civil Judge, Junior Division, Alirajpur in Civil Suit No.63A/2014 and MJC No.8/2021 whereby the application filed under Order XIV rule 1 (2)(5) CPC for trying the issue No.8 regarding res-judicata as preliminary issue has been allowed.

2. The facts draped in brevity are that the plaintiffs filed Civil Suit No. 63-A/2014 in the Court of Civil Judge Junior Division, Alirajpur for declaration, partition & possession. The defendant No.12/ respondent No. 12 is contesting defendant and he had filed his written statement and denied all the plaint allegations and filed counter claim also. The learned trial Court framed the issues. The plaintiffs’ suit was stayed as defendant Nos. 1 to 7 have filed suit for partition which was earlier in point of time. It was dismissed. Hence the proceedings of the case was again started. During the trial defendant No.12 filed application U/O 6 R. 17 C.P.C. and amended his written statement and contended that the present suit is barred by res-judicata . The application was allowed. Thereafter an additional issue with respect to res-judicata was framed by the learned trial Court. The defendant No. 12 filed an application U/O 14 R. 1 (2) (5) C.P.C. for trying aforesaid issue as preliminary issue. The petitioners opposed the application by filing their reply. The learned trial Court after hearing the parties allowed the application and directed parties to lead evidence on this issue by impugned order dtd. 13.2.2020. The petitioners preferred review application for reviewing order of Annexure-P/1. The case was registered as M.J.C. No. 8/2021. The defendant No. 12 opposed the application by filing reply. The aforesaid review was dismissed by the learned trial Court.

3. Counsel for the petitioners argued that the trial Court has committed an error by directing issue No.8 regarding res-judicata to be decided as preliminary issue and simultaneously he directed the parties may lead evidence. It is argued that it is settled law that an issue cannot be tried as preliminary issue if evidence is required for the same. The order is contrary to the judgment passed by the apex Court in the case of Sathyanath & Anr. v. Sarojamani (2022) 7 SCC 644, Ramesh B. Desai & Ors. v. Bipin Vadilal Mehta & Ors. (2006) 5 SCC 638 and also the judgment passed by the Full Bench in the case of Ramdayal Umraomal v. Pannalal Jagannathji 1979 MPLJ 736.

4. Per contra counsel for the respondent No.12 submitted that one of the daughter-in-law of Mishrilal namely Umabai Wd/o Jagannath Rathore has filed a Civil Suit for declaration, partition, possession and permanent injunction on a plea that she has a 1/3rd share in the land bearing survey No.35/1 area, 2.31 hectare, Gram-Lakahkot, Dist. Alirajpur as the same is being an ancestral property and is belonging to Shri Mishrilalji. The said suit was filed after impleading the answering respondent and as also the present petitioner including other respondents as defendants to the suit. The said suit was filed in the Court of Additional Civil Judge, Class-II, Alirajpur and was registered as C.S. No.08-A/2014. The said suit was contested by the answering respondent by way of filing a detailed and exhaustive written statement and it was pleaded that the property in question was falling into his share in view of the Family Settlement dated 20.8.1991 and prayed for dismissal of the suit. The trial Court after full fledged trial has decreed the suit filed by the plaintiff namely Umabai