PULLAIYANNAN Vs. KUNJANNA GOUNDER

JUDGEMENT

(1.) This civil revision petition has been filed to set aside the fair and decretal order of the District Munsif Court at Mettur dtd. 1/12/2015 in IA.No.323 of 2012 in OS.No.123 of 2010, thereby allowed the petition to frame a preliminary issue with regard to maintainability and also applicability of the provisions of Ss. 10 to 12 of CPC and to try the same as preliminary issue.

(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 Ss. 10, 11 and 12 and 151 of CPC to frame a preliminary issue with regard to maintainability of the suit and also applicability of the provisions of Ss. 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.

(3.) The learned counsel for the petitioners would submit that the application filed under Order XIV Rule 2 of CPC is not at all maintainable in respect of the issues relating to Ss. 10, 11 and 12 of CPC. The provision is very clear that except the question of law, legal issues with regard to the facts cannot be framed as preliminary issue. In particular, the issue of res judicata cannot be decided as a preliminary issue when there is a mixed question of facts and law or a question of law that requires trial. He further submitted that already the respondents filed petition under Sec. 11 of CPC to dismiss the suit on the ground of res judicata in IA.No.1371 of 2010. It was dismissed by the trial court by order dtd. 19/8/2011. Once again, the respondents filed petition on the very same ground to treat the same as a preliminary issue. In support of his contention, he relied upon various judgments of the Hon'ble Supreme Court of India.