GOMEZ Vs. MANUAL GOMEZ

JUDGEMENT

(1.) The challenge in this civil revision is against the order passed by the learned Principal Munsiff, Thiruvananthapuram in O.S. No. 1261 of 2004 closing the suit for the reason that it is barred by res judicata. Petitioner/plaintiff filed the suit for a declaration of fixation of boundary, mandatory injunction, etc. The 1s' respondent filed written statement contending that the suit is barred by res judicata in view of the decision in O.S No 1682 of 1999 filed by petitioner against the 1st respondent, also for fixation of boundary and prohibitory injunction and which was dismissed on merit in the year, 2003 which has become final. The 1st respondent raised other contentions as well on the merit of the case pleaded by the petitioner. No attempt was made to raise a preliminary issue regarding res judicata if at all it is capable of a decision under Order XIV, Rule 2 of the Code of Civil Procedure (for short "the Code"). Instead the suit was posted for trial in the list and on that day, petitioner was examined through the Advocate Commissioner. After closing of evidence of petitioner the case was posted for defence evidence. At that stage, learned Munsiff passed the impugned order 'closing the suit'. It is contended by the learned counsel that plea of res judicata only prevents investigation of the dispute involved and does not affect maintainability of the suit. Reliance is placed on the decision in Mary W/o. Thomas and another v. Mathew Joseph and others, 1992 AIR(Ker) 305 It is also contended by the learned counsel that since the issue was not heard and decided at the earlier stage and instead, parties went to trial on the issues framed it was not proper to close the suit on a preliminary issue when it was possible to complete the evidence of respondent also and decide all issues involved including maintainability of the suit,".

(2.) Learned counsel for 1st respondent contended that there is no bar in deciding the preliminary issue even after commencement of evidence and petitioner cannot wriggle out of the decision in O.S. No. 1682 of 1999 alleging that there is change of circumstances which was no relevance in the issue involved.

(3.) No doubt, a plea of res judicata only bars investigation of the issue already decided. A preliminary issue under Order XIV, Rule 2 of the Code must be an issue relating to a question of law alone. If it involved question of fact and law, it could not be decided as a preliminary issue, In the present case petitioner has raised some contentions which according to him would take the case out of the mischief of Section 11 of the Code. However, I am not going into that question at this stage.