SURSATI Vs. BACHAN SINGH

JUDGEMENT

(1.) The present suit was filed by the petitioner for permanent injunction restraining the respondents from interfering in his possession. One of the defences raised was that the suit is barred by the principle of res judicata as a similar suit between the same parties instituted previously had already been dismissed. Issue No. 3 was framed with respect to this plea. On the day when the plaintiff was to lead his evidence, the defendant moved an application for treating Issue No. 3 as a preliminary issue which was allowed by the impugned order. Aggrieved thereby, the plaintiff has come up in revision.

(2.) The question of res judicata is a mixed question of law and facts and is not 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 and that too when the suit can be disposed of on its decision.

(3.) Therefore, the trial Court acted illegally in the exercise of its jurisdiction in treating Issue No. 3 as a preliminary issue. The impugned order is accordingly set aside. No costs.