SABITHA DEVI Vs. S.K. SREEDEVI

JUDGEMENT

(1.) THE respondent has filed O.S.No.7363/2009 vide Annexure-B, against the petitioners in the City Civil Court, Bangalore, to pass a Judgment and Decree declaring her as the absolute owner of the plaint schedule property and direct the defendants to put the plaintiff in possession of the suit property and determine the damages and direct the defendants to pay mesne profits and arrears of rent and for consequential reliefs. The petitioners being the defendants, have filed written statement vide Annexure-C and have contested the suit on multiple grounds. Based on the pleadings, the learned Trial Judge has raised issues vide Annexure-D on 15.06.2010. Issue No.8 is with regard to applicability of principles of res-judicata, with reference to a Judgment and Decree dated 21.12.2005 passed in O.S.No.8108/1998 vide Annexure-F. Said issue having been raised was treated as a preliminary issue. Having heard the learned counsel of both the sides on the said issue, the Trial Court has answered issue No.8 in the negative, by an order dated 02.06.20012, as at Annexure- A. This writ petition filed by the defendants is directed against the said order.

(2.) HEARD Sri C.S. Prasanna Kumar, learned advocate appearing for the petitioners and Sri Padmanabha Mahale, learned senior advocate appearing for the respondent and perused the writ record.

(3.) IN the case of ALAMENGADA MUDDAPPA V/S ALAMENGADA KUTTAPPA, ILR 2010 KAR 5179, it was held that, 'in view of Sub-Rule (2) of Rule 2 of Order 14 of CPC, if the Court is of the 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 that issue relates to; (a) jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force.' The ratio of the law laid down in the case of MAJOR S.C. KHANNA V/S BRIG. F.J. DILLON, AIR 1964 SC 497 was noticed and it was held that 'since, res- judicata is a mixed question of fact and law, the same should be proved by producing copies of pleadings and issues framed in the earlier suit, by the party, which has raised the plea'.