MASTN Vs. PREM SINGH

JUDGEMENT

(1.) On a perusal of the records and the order passed by the learned Subordinate Judge, Sundernagar, I am of the view that the order, which is under challenge in this revision petition is not satisfactory at all. On the one hand, the learned Sub Judge has stated that the plea of res judicata will not be available to the plaintiffs and it can be taken only by the defendants, which is an erroneous view. The plea of res judicata can be taken by the plaintiffs as regards the issue, which is sought to be raised by the defendants in the present proceedings If that issue is decided already as between the parties in an earlier proceeding and that decision has become final the question will have to be considered whether that decision is res judicata or not. It cannot be said that the plaintiffs are not entitled to place reliance on the earlier judgment and plead that it is res judicata. On the other hand, the learned Sub Judge has taken the view that the judgment and decree -sheets Ex, PA to PD, do not show whether the matter in issue was the same though according to him, the subject matter was the same Learned Judge has not giveu any reason as to why the essential ingredients of section 11 of the Code of Civil Procedure are not fulfilled. As the order is wholly unsatisfactory, the same is set -aside.

(2.) Learned Sub -Judge is directed to decide issue No, 4 afresh along with other issues raised in the suit. It is not necessary that issue No, 4 should be tried as a preliminary issue Learned Sub -Judge shall try all the issues together and give his findings on all such issues. 3, Whichever party is aggrieved by the ultimate decision of the learned Sub -Judge may challenge the same in the appellate Court, 4 With the above directions, the civil -revision is allowed. There will be no orders as to costs Revision allowed.