LEELABAI Vs. UMABAI

JUDGEMENT

(1.) The present petition is filed under Article 227 of the Constitution of India challenging the orders dtd. 13/2/2020 and 30/7/2022 passed by Civil Judge, Junior Division, Alirajpur in Civil Suit No.63A/2014 and MJC No.8/2021 whereby the application filed under Order XIV Rule 1 (2)(5) CPC for trying the issue No.8 regarding res-judicata as preliminary issue has been allowed.

(2.) The facts draped in brevity are that the plaintiffs filed Civil Suit No. 63-A/2014 in the Court of Civil Judge Junior Division, Alirajpur for declaration, partition and possession. The defendant no.12/ respondent no. 12 is contesting defendant and he had filed his written statement and denied all the plaint allegations and filed counter claim also. The learned trial Court framed the issues. The plaintiffs' suit was stayed as defendant nos. 1 to 7 have filed suit for partition which was earlier in point of time. It was dismissed. Hence the proceedings of the case was again started. During the trial defendant no.12 filed application U/O 6 R. 17 C.P.C. and amended his written statement and contended that the present suit is barred by res-judicata . The application was allowed. Thereafter an additional issue with respect to res-judicata was framed by the learned trial Court. The defendant no. 12 filed an application U/O 14 R. 1 (2) (5) C.P.C. for trying aforesaid issue as preliminary issue. The petitioners opposed the application by filing their reply. The learned Trial Court after hearing the parties allowed the application and directed parties to lead evidence on this issue by impugned order dtd. 13/02/2020. The petitioners preferred review application for reviewing order of Annexure-P/1. The case was registered as M.J.C. No. 8/2021. The defendant no. 12 opposed the application by filing reply. The aforesaid review was dismissed by the learned trial court.

(3.) Counsel for the petitioners argued that the trial Court has committed an error by directing issue No.8 regarding res-judicata to be decided as preliminary issue and simultaneously he directed the parties may lead evidence. It is argued that it is settled law that an issue cannot be tried as preliminary issue if evidence is required for the same. The order is contrary to the judgment passed by the Apex Court in the case of Sathyanath and Anr. vs. Sarojamani (2022) 7 SCC 644, Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638 and also the judgment passed by the Full Bench in the case of Ramdayal Umraomal vs. Pannalal Jagannathji 1979 MPLJ 736.