The issue of res-judicata constitutes a mixed question of law and fact, requiring evidence and factual inquiry. Consequently, it cannot be adjudicated as a preliminary issue under procedural law, as such trials are limited to pure questions of jurisdiction or law demonstrable without evidence.

JUDGMENT :

BIPIN GUPTA, J.

1. The present writ petition has been filed assailing the order dated 15.11.2017, passed by learned Additional Civil Judge-cum- Metropolitan Magistrate, No. 3, Jaipur Metropolitan, Jaipur, in Civil Original Suit No. 782/2013, whereby, an application preferred by the defendants-respondents under Order 14 Rule 2 (2) CPC was partly allowed to the extent of issue pertaining to a disputed wall, being barred by principle of res-judicata.

2. The controversy in a narrow compass is that the plaintiff- petitioner had filed a suit for Perpetual and Mandatory Injunction against the defendants-respondents on account of the fact that the defendants have illegally raised a wall over the common boundary wall and intended to construct a cellar near to the said common boundary wall.

2.1 Controverting the same, a detailed written statement and counter-claim was filed by the defendants-respondents. Thereafter, a rejoinder was also filed by the plaintiff-petitioner. Subsequently, the issues were framed therein vide order dated 10.11.2009 and additional issues were framed vide order dated 31.03.2015.

3. During the stage of plaintiff’s evidence, the defendants- respondents filed an application under Order 14 Rule 2(2) CPC for deciding Issue Nos. 6 and 7 as preliminary issue being purely question of law. Issue No.6 pertained to the issue whether the suit being barred by res-judicata, and thus the same being barred by law under the provisions of Order 7 Rule 11(d) CPC. Issue No. 7 pertained to whether a cause of action existed or not.

4. Learned Trial Court vide impugned order dated 15.11.2017 partly allowed the said application to the extent of Issue No.6 pertaining to a disputed wall, and held being barred by principles of res-judicata as on the basis of previous judgment dated 18.04.1977, passed in Suit No. 94/69 (137/74) titled as ‘Harinarayan vs Kalu Ram’.

5. Aggrieved by the said order, the plaintiff-petitioner preferred the present writ petition.

6. Learned counsel for the petitioner at the outset submitted that the learned Trial Court failed to consider the fact that the subject matter, parties and issues substantially and directly involved in the present matter and the suit decided earlier were different and distinct. Hence, the principle of res-judicata mandated under Section 11 CPC was not applicable.

6.1. Learned counsel for the petitioner submitted that the cause of action that arose between the parties in the present matter was not similar to the one involved in the previous suit. Learned counsel further clarified that the suit filed earlier pertained to issue of pre-emption whereas the present suit is for perpetual and mandatory injunction.

6.2. Learned counsel for the petitioner submitted that even otherwise in the judgment dated 18.04.1977, passed in the earlier suit, issue with regard to the common wall was neither framed nor heard/finally decided. Instead, the observation made in that judgment stated that the rights of the predecessor of the petitioner over the disputed wall were found to be of tenancy in common. He further relied upon the judgment passed in the case of Sathyanath and Anr. vs Sarojamani ; (2022) 7 SCC 644 to advance his arguments and contended that the issue of res- judicata is a mixed question of law and fact and thus could not have been decided as preliminary issue without evidence.

6.3. Learned counsel for the petitioner further contended that the learned Trial Court se