MEHARBAN Vs. PUNJAB WAKF BOARD

JUDGEMENT

(1.) THIS petition has been directed against the order dated 20. 3. 1997 passed by Additional Civil Judge (SD) Panipat. By this order, the learned trial Court has dismissed the application filed by the defendants for treating issue No. 2 as a preliminary issue. Issue No. 2 is to the effect that the suit is barred by principle of resjudicala. Notice of this petition was issued to the respondents.

(2.) MR . Battas, the learned counsel appearing on behalf of the petitioners submitted that the respondent Wakf Board had earlier filed a suit for possession on 21. 3. 1972 and the said suit was dismissed vide judgment and decree dated 13. 11. 1972. He further submitted that the appeal filed by the Wakf Board was, however, allowed by the lower appellate Court vide judgment dated 28. 2. 1974, but Regular Second Appeal filed by the petitioners and others was allowed by the High Court vide judgment dated 25. 1. 1983. It was held by the High Court that the Wakf Board had no locus standi to file the suit. He further submitted that Special Leave Petition filed by the Wakf Board was dismissed by the Supreme Court vide judgment dated 9. 12. 1985. The learned counsel submitted that the present suit has again been filed for the recovery of possession against the petitioners on 25. 8. 1989. He submitted that in the written statement filed on behalf of the petitioners-defendants, inter alia, it has been stated that the present suit was barred by the principle of res judicata, and issue No. 2, has been framed on this point. The learned counsel submitted that since the plea of resjudicata is a plea of law, an application was filed before the learned trial Court for treating this issue as a preliminary issue but the re quest has been rejected by the learned trial Court by the order dated 20. 3. 1997 which has been impugned in this petition.

(3.) THE learned counsel further submitted that in the present case the learned trial Court keeping in view the facts of the case has held that the issue No. 2 pertaining to the point of resjudicata can not be decided without receiving the evidence and once the learned trial Court had exercised the jurisdiction in accordance with law, this court should not interfere in its jurisdiction Under Section 115 C. P. C. In support of this submission, learned counsel has placed reliance on two judgments of this Court in Surinder Pal Singh and Anr. v. Pawanveer Kaur and Ors. , 1989 P. L. J. 512 and Bharat Petroleum Corporation Limited v. Sat Parkash Amar Singh, (1992-2)102 P. L. R. 45.