1982 Supreme(MP) 692

IN THE HIGH COURT OF MADHYA PRADESH
R.K. VIJAYWARGIYA, J.
Hasankhan - Applicant
Versus
Chhotibai - Non-Applicant
C.R. No. 514 of 1980 (I)
Decided On : 30-09-1982

Headnote:(1) Civil Procedure Code, 1908 – O. 14, R. 2 – preliminary issue requiring evidence should be decided along with other issues.

       (2) Civil Procedure Code, 1908 – S. 11 and O.14, R. 2 – issue of res judicata requiring evidence – cannot be tried as preliminary issue before trial.

        Short Note

       1. In a suit filed by the applicant against the non – applicants the plaintiff alleged that the judgment passed in the earlier suit operates as res judicata. The trial Court decided the said issue as preliminary issue and held that the decision in the earlier suit did not operate as res judicata. Aggrieved by the order of the trial Court the plaintiff has submitted this revision.

       Held: The only grievance of the learned counsel for the plaintiff is that this was an issue of mixed question of law and fact and evidence was necessary to decide the said issue and therefore the trial Court acted illegally in trying the said issue as preliminary issue. The contention of the learned counsel for the applicant has force. Full Bench of this Court in Ramdayal Umraomal v. Pannalal Jagnnath (1979 JLJ 720) has held that when evidence is necessary to deceased an issue it should not be tried as a preliminary issue. The order passed by the trial Court therefore cannot be sustained in law and is set aside in so far as it relates to the finding on issue No.3. The trial Court is directed to decide the issue of res judicata along with other issue in the suit. 1979 JLJ 720 (FB) followed. Revision allowed.