IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN MISC. PETITION No. 2361 of 2024 M/S SIDDI VINAYAK BUILDERS AND DEVELOPERS THROUGH ITS DIRECTOR VIKAS JAIN Versus M/S JAI VINAYAK INFA CORPORATION PVT. LTD. THROUGH ITS DIRECTOR SHRI DEVENDRA GURJAR AND OTHERS Appearance:

Shri Naveen Vaswani - Advocate (through VC) with ShriRuchir Jain -

Advocate for the petitioner.

Shri Harsh Gupta - Advocate for respondent No.1.

ORDER (Reserved on:- 22.01.2026)

(Pronounced on:- 17.02.2026)

The present petition under Article 227 of the Constitution of India has been filed arising out of the order dated 16.04.2024 passed by the trial Court, whereby the trial Court has rejected an application of the petitioner under Order 14 Rule 2 CPC to the extent of issue No.3 framed by the trial Court, which relates to the question that whether the suit is barred by the principle of res-

judicata enshrined under Section 11 of the Code of Civil Procedure.

2. The present petitioner/defendant No.8 is before this Court being aggrieved by the rejection of application under Order 14 Rule 2 CPC by the trial Court, whereby the trial Court has refused to decide the said issue as a preliminary issue by holding that the said issue needs trial, because it is a mixed issue of law and fact, which can only be decided on merits after evidence alongwith other issues.

3. Learned counsel for the petitioner has vehemently argued that the additional issue No.5 relating to the question that whether the suit is barred by the principle of res-judicata in terms of Section 11 of the Code of Civil Procedure, though it may be a mixed issue of law and fact in usual cases, but in view of the peculiar circumstances of this case, the issue was not a mixed issue of law and fact and therefore, it could have been decided as a preliminary issue.

4. Counsel for the petitioner has argued that the present suit has been filed by the plaintiff and for the same assertions which the plaintiff asserts in the plaint and for the same relief and same right, which is asserted in the plaint, plaintiff had filed objections in execution case, which related to execution of the decree dated 23.08.2001 passed in RCSA No.46/2001 by the trial Court and the Executing Court had decided the objections of the plaintiff in detail vide order dated 11.07.2013 and rejected the said objections by considering the same assertions that are now being contended again in the fresh suit filed by the plaintiff and therefore, the fresh suit is barred by the principle of res-judicata. It is argued that though it may be required for the Court to go through the documents of the earlier suit, but the said issue does not require any evidence and only by perusal of the earlier order passed in the execution proceedings of earlier suit, the issue No.5 can be ascertained that whether the subsequent suit is barred by the principle of res-judicata or not. On these assertions, it is prayed to set aside the impugned order passed by the trial Court and to direct the trial Court to decide issue No.5 as a preliminary issue.

5. Per contra, counsel for the respondent No.1/plaintiff has vehemently opposed the aforesaid assertions of the counsel for the petitioner and it is vehemently argued before this Court that the trial Court has rightly dealt with the application of the petitioner. It is contended that since evidence has started in the suit, therefore, now there is no utility to decide issue No.5 as a preliminary issue, which may or may not require any evidence, because in any event, evidence has started in the suit. Therefore, the respondent No.1/plaintiff prays for dismissal of the present petition.

6. Heard.

7. The present case relates to prayer of the petitioner-defendant No. 8 to try issue No.5 as a preliminary issue on the assertion that such issue does not require recording of any evidence and it can be decided by consideration of the documents on record. Order 14 Rule 2 (2) CPC provides that an issue can be tried