IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 24 OF FEBRUARY, 2026 MISC. PETITION No. 884 of 2026 SHANKARLAL MEHRA Versus NAGAR PALIK NIGAM AND OTHERS Appearance:

Shri Paras Nath Das - Advocate for the petitioner.

ORDER By way of present petition challenge is made to the order Annexure P-

5 dated 15.01.2026 whereby the trial Court has rejected application under Order 14 Rule 2 CPC for deciding issue as to res judicata as a preliminary issue, that whether the counter claim is barred by res judicata.

2. The trial Court has rejected the said application on the ground that plea of res judicata is always a mixed question of law and fact and therefore it cannot be decided as a preliminary issue and it has to be decided after recording evidence along with all the issues in a common trial which will be held to decide all the issues together and trial cannot be held in piecemeal.

3. Though it is true that trial cannot be held in piecemeal, however the contention of the counsel for petitioner is that the issue as to res judicata in the present case only requires reading of documents of the petitioner-plaintiff who is defendant in counter claim and does not require any evidence.

4. Even the trial court while passing the impugned order has simply mentioned as a matter of course that issue of res judicata is a mixed question of law and fact but has not written a single word as to whether in the present case the issue of res judicata is a mixed question of law and fact.

5. Recently, this Court in MP-2361 of 2024 in relation to the issue as to res judicata to be decided as preliminary issue under Order 14 Rule 2 CPC has held as under:-

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 as a preliminary issue if the issue relates to jurisdiction of the Court or bar to the suit created by any law for the time being in force, and the Court if it deems fit, can postpone decision of other issues until such issue dwelling on jurisdiction of the Court or bar to the suit is decided and determined and thereafter the Court may proceed to decide other issues. Order

14 Rule 2 CPC is as under:-

“2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to—

(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.”

8. Earlier suit was filed by one Hidayat Ali from whom undisputedly, the present petitioner/defendant No.1 has acquired title by way of registered sale deed dated 11.12.2020. The said suit was filed against three defendants, namely, i) Eknath, ii) Smt. Vimalwife of Eknath and iii) Samanvay Cooperative Housing Society. The trial Court had decided the saidsuit videjudgment and decree dated 23.08.2001 and the operative part of the decree is in five paragraphs, which is as under:-

"8 (cid:1)मा(cid:4)णत (cid:7)कया है (cid:7)क (cid:1)ित. क. 1 व 3 (cid:15)ारा उसके भूख(cid:23)ड कं. 44 (cid:4)(cid:26)थत (cid:28)ाम खजूर(cid:30) कला पर (cid:1)ितवाद(cid:30)गण (cid:15)ारा अनािधकृत (cid:39)प से अितचारकर भवन िनमाण(cid:41) कर िलया है। वाद(cid:30) (cid:1)ितवाद(cid:30) क. 1 व 3 से

भूख(cid:23)ड क. 44 का (cid:43)र(cid:44) अिधप(cid:45)य (cid:1)ा(cid: