LOKNATH Vs. HARISHCHANDRA

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff is as under:-­

(2.) The plaintiff filed a suit for possession stating inter-­alia that he is title-­holder of the suit land and as such, entitled for possession over the suit land shown in Schedule 'A' appended with the plaint, in which the defendant filed his written statement stating inter-­alia that the suit is barred by principle of res judicata, in which, the trial Court on 13.11.2000 has framed the issues including the issue of res judicata being Issue No.5 and thereafter Issue No.5 was taken as preliminary issue before recording evidence and by order dated 9.8.2005 the suit was dismissed as barred by principle of res judicata. On appeal being preferred by the plaintiff, the the first appellate Court affirmed the same. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellant/plaintiff, in which substantial question of law has been formulated by this Court, which has been set-­out in the opening paragraph of this judgment.

(3.) Mr.H.B.Agrawal, learned Senior Advocate with Mrs.Preeti Yadav, learned counsel for legal representatives of the appellant/plaintiff, would submit that the question of res judicata does not strike to the root of the jurisdiction of the Court trying subsequent suit and therefore, it could not have been taken as a preliminary issue by the trial Court under Order 14 Rule 2(2)(b) of the CPC. He would further submit that the plea of res judicata is a mixed question of law and fact and it could not have been decided without recording evidence of the parties. He placed reliance upon the judgments of the Supreme Court in the matters of V. Rajeshwari (Smt.) v. T.C. Saravanabava, (2004) 1 SCC 551, Vaish Aggarwal Panchayat v. Inder Kumar & others, AIR 2015 SC 3357, and Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) Through Legal Representative and others, (2015) 6 SCC 412, in support of his submission.