RAM LAL Vs. ONKAR SINGH

JUDGEMENT

(1.) The above appeal has been filed under Order 43, Rule 1 (u) of the Code of Civil Procedure against the judgment dated 8.8.1994 passed by learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No. 50 of 1992, whereunder the learned Judge of the First Appellate Court, while setting aside the judgment of the learned trial Judge held that the suit filed in C.S. No. 272/87 on the file of the learned Subordinate Judge 1st Class, Nurpur is not barred by principle of the res judicata and as a consequence thereof remitted to the trial Court the suit with a direction to decide the remaining issues, especially Issue No. 2 on merits as finding on Issue No. 1 was said to have been delivered by the learned Subordinate Judge in the previous suit between Defendant I No. 1 and Plaintiff No. 1.

(2.) The learned trial Judge has chosen to dispose of the suit I by taking for consideration Issue No. 2 -A, "Whether the suit is hit I by principle of resjudicata as alleged ? OPP", as a preliminary issue j and dismissed the suit by holding that the present suit is hit by 1 the principle of res judicata and not maintainable. In coming to I such a conclusion, the learned trial Judge was of the view that I the judgment and decree passed in Civil Suit No. 219 of 1987 and | 35/88 filed on 19.3.1987 and decided on 27.2.1989, the judgment in which was marked in the present proceedings as Exhibit P -l, operated as res judicata. On appeal by the plaintiff in the present proceedings, the learned first appellate Judge as noticed earlier has set aside the judgment of the learned trial Judge dismissing the suit on the ground of the bar based on the principle of resjudicata and remitted the same for disposal afresh in the light of the directions contained in the judgment under appeal. Hence the above appeal by the defendants in the present suit.

(3.) Mr. Ajay Shanha, learned Counsel for the petitioners while placing strong reliance upon the decision reported in AIR 1979 Supreme Court 1268, Narayana Prabhu Venkateswara Prahhu v. Narayana Prabhu Krishna Prabhu (dead) by LRs, invited our attention to Explanation IV to Section 11 of the Code of Civil Procedure to contend that since the matter regarding the execution of the Will, the parties being governed by the Kangra customs in the matter of alienation, the attestation of mutation on the basis of the Will and other factual claims made stood adjudicated in the previous suit, the present suit is hit by the principle of res judicata and that it has been so rightly held also by the learned trial Judge and the learned First Appellate Judge committed grave error of law in interfering with the Said findings and the judgment of the learned trial Judge.