THOMAS FEN Vs. PARAMESWARAN

JUDGEMENT

(1.) This writ petition is preferred against the order of the Subordinate Judge, Kochi in IA 2279/07 in OS 508/06. It was an application for measurement of plaint A and B schedule properties. The Court below disposed of the matter, "Since the rival issues are clearly answered, the present suit is apparently barred by res judicata." So the Court has not considered that application on the premises that the principle of res judicata applies and so this prayer cannot be allowed. But the Court has not considered the case of res judicata at all in a way in which it deserves to be considered. The learned counsel for the respondents had taken me through the written statement wherein they have clearly reiterated the question of res judicata.

(2.) The question of res judicata may be a mixed question of law and facts and some times it may not be a pure question of law. Only an issue of law which does not require any evidence to prove it can be treated as a preliminary issue. If the principles contained in O.14 R.2(2) are satisfied and issue of res judicata is capable of being decided on the basis of undisputed facts emerging from the pleadings it is the duty of the Court to decide the said issue as a preliminary issue. This is a matter which requires consideration by the Court below. Therefore I direct the Court below to consider the question whether the question of res judicata can be heard as a preliminary issue. If the Court finds that it can be then the Court can answer the same and if it is in favour of the defendants in the suit it is an end of the litigation there but if it is otherwise then the application made by the present petitioner has to be considered. Therefore in order to avoid reopening of the order I permit the writ petitioner herein, in case if it is found that the principles of res judicata cannot be considered as a preliminary issue or it is not barred by principles of res judicata, to file a fresh application with the very same prayer and the Court to consider the same after permitting the other side to file objections. With these observations the writ petition is disposed of.