Order 14, Rule 2 read with Sections 10, 11,12 and 151 CPC Suit for declaration and permanent injunction Application to frame a preliminary issue with regard to maintainability of suit and applicability of provisions was allowed
Pullaiyannan vs Kunjanna CRP 4105/16 11/10/23 [ Justice G.K.ILANTHIRAIYAN, J. ]
[ MADRAS HIGH COURT ]
Order 14, Rule 2 read with Sections 10, 11,12 and 151 CPC Suit for declaration and permanent injunction Application to frame a preliminary issue with regard to maintainability of suit and applicability of provisions was allowed Prayer in both the suits are completely different one issue of res judicata is a mixed issued of fact and law and it cannot be decided as a preliminary issue It has to be decided on proper pleadings and evidence of parties The issue of law can be decided as a preliminary issue, whereas the mixed issue of fact and law cannot be decided as a preliminary issue Trial Court has committed illegality in deciding the issue of res judicata as a preliminary issue Civil revision petition is allowed.
Relevant Paras:
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.
11. The learned counsel for the respondents vehemently contended that already the petitioners filed appeal suit as against the decree passed in OS.No.149 of 2004 in AS.No.25 of 2009, in which they also filed application in IA.No.39 of 2010 praying to remand the suit for fresh disposal along with the present suit filed by them. As stated supra, the prayer in both the suits are completely different one and as such, the said application was already dismissed by the appellate court. Therefore, the said appeal is nothing to do with the present suit and it has to be tried separately. In fact, the trial court already framed issues and when the suit is riped for trial, the respondents filed the present application. Therefore, the issue of res judicata is a mixed issue of fact and law and it cannot be decided as a preliminary issue. It has to be decided on proper pleadings and evidence of parties. The issue of law can be decided as a preliminary issue, whereas the mixed issue of fact and law cannot be decided as a preliminary issue. Thus, this Court is of the view that the trial court has committed illegality in deciding the issue of res judiciata as a preliminary issue. As such, the impunged order cannot be sustained and it is liable to be set aside.
12. Accordingly, 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 are set aside and this civil revision petition is allowed. There shall be no order as to costs.
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