IMPORTANT POINT
Preliminary issue – Issue of res judicata is mixed issue of fact and law and it cannot be decided as preliminary issue.

ORDER

This civil revision petition has been filed to set aside the fair and decretal order of the District Munsif Court at Mettur dated 01.12.2015 in IA.No.323 of 2012 in OS.No.123 of 2010, thereby allowed the petition to frame a preliminary issue with regard to maintainability and also applicability of the provisions of Sections 10 to 12 of CPC and to try the same as preliminary issue.

2. The petitioners are the plaintiffs and the respondents are the defendants. The petitioners filed suit for declaration and permanent injunction in respect of the suit properties. While pending the suit, the respondents filed application under Order XIV Rule 2 of CPC r/w Sections 10, 11 & 12 and 151 of CPC to frame a preliminary issue with regard to maintainability of the suit and also applicability of the provisions of Sections 10 to 12 of CPC and to try the same as preliminary issue and the same was allowed. Aggrieved by the same, the present civil revision petition has been filed.

3. The learned counsel for the petitioners would submit that the application filed under Order XIV Rule 2 of CPC is not at all maintainable in respect of the issues relating to Sections 10, 11 and 12 of CPC. The provision is very clear that except the question of law, legal issues with regard to the facts cannot be framed as preliminary issue. In particular, the issue of res judicata cannot be decided as a preliminary issue when there is a mixed question of facts and law or a question of law that requires trial. He further submitted that already the respondents filed petition under Section 11 of CPC to dismiss the suit on the ground of res judicata in IA.No.1371 of 2010. It was dismissed by the trial court by order dated 19.08.2011. Once again, the respondents filed petition on the very same ground to treat the same as a preliminary issue. In support of his contention, he relied upon various judgments of the Hon’ble Supreme Court of India.

4. Per contra, the learned counsel for the respondents would submit that they are absolute owners of the lands comprised in survey No.204/1 to an extent of 1 acre 18 cents and in survey No.204/3 to an extent of 7 acres 38 cents situated at Olaipatty Village with a right of cart track in the lands of the petitioners herein in survey No.204/2. In fact, the respondents already filed suit in OS.No.248 of 2001 on the file of the District Munsif Court, Mettur for declaration and consequential permanent injunction as against the petitioners herein with regard to the lands comprised in survey No.204/3 and also 204/1 situated at Olaipatty Village. Further, they also filed another suit in OS.No.174 of 2001 on the file of the Sub Court, Mettur in order to protect their rights with regards to the cart track. Thereafter, the suit in OS.No.174 of 2001 on the file of the Sub Court, Mettur was transferred to the file of the District Munsif Court, Mettur and renumbered as OS.No.149 of 2004. The suit in OS.No.149 of 2004 was decreed in their favour and in view of the said decree, the suit in OS.No.248 of 2001 is dismissed. Aggrieved by the same, the petitioners preferred appeal suit in AS.No.25 of 2009.

4.1 In the appeal suit, the petitioners filed IA.No.39 of 2010 seeking for remand of the suit for fresh disposal with the present suit filed by them in OS.No.123 of 2010. In the said application, they categorically admitted that the issues involved in the present suit as well as the suit filed by the respondents are one and the same and parties are also one and the same. Therefore, it is hit by principles of res judicata. Hence, the respondents filed petition under Section 11 of CPC to dismiss the suit by applying the principles of res judicata. It was dismissed. However, after filing the application by the petitioners in IA.No.39 of 2010 in AS.No.25 of 2009, the respondents were constrained to file the present petition to frame the preliminary issue with regards to provision under Sections 10 to 12 of CPC. Therefore, the trial court rightly allow