1983 Supreme(MP) 759

IN THE HIGH COURT OF MADHYA PRADESH
G.G. Sohani, R.K. Vijaywargia, JJ.
Baboosha - Appellant
Vs.
Municipal Corporation, Indore - Respondent
F. A. No. 55 of 1973 (I)
Decided On : 07-03-1983

Headnote:(1) Civil Procedure Code, 1908 – O. 14, R. 2 – preliminary issue of res judicata – cannot be decided in absence of plaint, written statement and issues framed in previous suit – decision requiring evidence – should be decided alongwith other issues.

       (2) Resjudicata – issue of – cannot be decided in absence of plaint, written statement and issues framed in previous suit.

        Short Note

       1. The appeal arises out of a suit instituted by the plaintiff – appellant against the defendant – Corporation under the provision of section 79 (A) (2) of the Municipal Corporation Act, 1956, hereinafter referred to as the Act. The plaintiff prayed that the order dated 12 – 3 – 1968 passed by the Deputy Collector, Indore, deciding the claim of the plaintiff to the land in question, be set aside and that the plaintiff be declared to be the owner of the land in question. The suit was resisted by the defendant Corporation inter alia on the ground that the decision in Civil Original Suit No. 4 – A of 1964 operated as 'res – judicata'. Based on this objection, an issue was framed and tried as a preliminary issue. The trial Court held that the suit in question was for the same relief as was sought in Civil Suit No. 4 – A of 1964 and hence the present suit was barred by 'res – judicata'. The trial Court, therefore, dismissed the plaintiff's suit with costs. Aggrieved by the judgment and decree passed by the trial Court, the plaintiff has filed this appeal.

       2. Held : Having heard learned counsel for the parties, we have come to the conclusion that the appeal deserves to be allowed. In the instant case, the trial Court had, on 12th March, 1969, framed 2 issues based on the pleadings of the parties and the case was thereafter fixed for recording evidence. The proceedings indicate that the hearing of the case was adjourned from time to time and ultimately on 17 – 4 – 1973, without recording any evidence, the trial Court heard arguments on issue No.5 relating to 'res – judicata' and dismissed it. The plaint, written statement and the issues framed in Civil Original Suit No. 4 – A of 1964 are not on record. All these documents are necessary for a proper appreciation of the issue in question. The finding of the trial Court on issue No.5, without any evidence, cannot be sustained in law. The case, therefore, deserve to be remanded for a fresh decision. An evidence could be required even for deciding the issue relating to 'res – judicata', and as it is quite an old case, we direct that the trial Court should record evidence on all the issues framed by the trial Court and the trial Court shall then proceed to dispose of the suit in accordance with law. Appeal allowed.