The court held that preliminary issues of res judicata and maintainability involving mixed questions of fact and law cannot be resolved without evidence, allowing the suit to proceed to trial.

JUDGMENT :

The defendants in O.S.No.144 of 2018, on the files of Additional Munsiff Court, Alappuzha, are the petitioners, and the respondent was the plaintiff. The suit was filed seeking a declaration of easement of necessity and for a mandatory injunction to remove the obstruction in item No.3 pathway.

2. The case of the plaintiff is that he is the absolute owner in - possession of 4.85 ares of land which is described as plaint item No.1 property. Item No.2 property is lying on the eastern side of item No.1 property, having an extent of 2.65 ares, which is under the ownership-in-possession of defendants. Plaint item No.3 is a pathway in existence at the southern side of item No.2 in east west direction. When the said pathway was closed by the defendants, the suit was filed.

3. Defendants entered appearance and filed a written statement and also I.A.No.1087 of 2018 for hearing a preliminary issue regarding the maintainability of the suit under Order 14 Rule 2(b) and Section 151 CPC. The preliminary issue raised was, ‘Is the suit barred by any law for the time being in force?’.

4. As per the averments in the affidavit in support of the petition, the suit is barred by Order 23 Rule 3, Order 2 Rule 2 and Section 11 of CPC. It is alleged that the 1^st defendant, along with his wife, had filed O.S. No.605 of 2013 against the plaintiff herein, and the suit was decreed ex parte on 9.4.2014 restraining the defendants by a decree of permanent prohibitory injunction from entering into the plaint schedule property and from committing any waste. The plaint schedule property in that suit is the plaint B schedule in the present suit. Thereafter, the respondent herein filed O.S.No.540 of 2014, claiming a right of prescription over item No.3 property and the said suit was withdrawn by the plaintiff as per order dated 21.11.2017 in I.A.No.4796 of 2017 in O.S.No.540 of 2014. Though liberty was sought for to institute a fresh suit on the same cause of action, liberty was not given. But, it was made clear that a separate suit can be filed with a different cause of action other than the cause of action alleged in the said suit.

5. The present suit, O.S.No.144 of 2018, is filed on the same cause of action and therefore, the suit is not maintainable in view of Order 23 Rule 3(a). The court below, by Ext.P9, dismissed the maintainability petition. Reasons given by the learned Munsiff for dismissing the same are 3 folded. Firstly, the question of res judicata was argued. The court below took note of the fact that res judicata, being a mixed question of fact and law, evidence is required to enter into such a finding as the parties in O.S.No.605 of 2013 as well as in O.S.No.540 of 2014 differ. Therefore, it was held that res judicata cannot be raised as a preliminary issue.

6. As far as the bar under Order 2 Rule 2 CPC is concerned, since the question pointed out by the defendants that the cause of action for the present suit also occurred during the currency of the previous suit, it is also a matter for evidence as it is a mixed question of law and fact.

7. The 3^rd question regarding the bar under Order 23 Rule 1(3) CPC, whether the cause of action alleged in the present suit is the same as that of the previous suit, can only be decided on the basis of the evidence.

8. The cause of action alleged in the present suit arose on 27.12.2017, the date on which item No.3 was closed down by the defendants. It is true that the reason for withdrawing the earlier suit is the closing of the pathway, but the date on which the said pathway is closed is not clear from the said pleading. So, for that reason, evidence is required. The trial court has only held that the contention regarding the bar of the suit is a mixed question of fact and law, and the same cannot be adjudicated at this stage. The order does not preclude the trial court from raising the bar of the suit under the 3 heads raised by the defendants as issues in the trial.

9. The counsel appearing for the petitio