STATE OF HARYANA Vs. DHARAMPAL

JUDGEMENT

(1.) This order will dispose of Civil Revision Nos. 2516 and 2517 of 1993.

(2.) Facts for the purpose of this judgment have been taken from Civil Revision No. 2517 of 1993.

(3.) Gopal filed a suit for declaration with consequential relief of permanent injunction. After the filing of the written statement, defendant-State moved an application for framing a preliminary issue to the effect "whether the suit is not main- tainable in the present form OPD." According to the defendants-applicant the plaintiff had previously filed a suit, which had been dismissed under Order 9 Rule 8 CPC and the present suit is not maintainable being barred by principles of resjudicata. The plaintiff denied the allegations made in the application and submitted that this issue needs evidence and suit cannot be disposed of as this issue involves both questions of law and fact. It was also stated that this issue cannot be disposed of in the absence of evidence. Learned trial Court came to the conclusion that the issue of resjudicata cannot be treated as a preliminary issue, as this question is a mixed question of law and fact is not a pure question of law. It was further observed that only such issue can be treated as preliminary issues, which do not require any evidence to prove them or the suit can be disposed of on its decision. Ultimately, it was held that the question of resjudicata is a mixed question of law and fact and is not a pure question of law and once evidence is required to be led on a issue, it can- not be treated as a preliminary issue.