Hari Singh @ Leely and others vs Mewa Singh and others

Tejinder Singh Dhindsa J.—The plaintiffs had filed a suit praying for a decree of mandatory injunction directing the defendants to restore a 3 karam wide rasta as reflected in yellow colour in the site plan attached with the plaint stating the same to have been in existence for more than 30 years. The defendants having contested the suit filed a written statement and also filed an application u/s 151 of the CPC for deciding the issue regarding principle of res judicata as a preliminary issue. The defendants averred that the plaintiff had earlier filed a suit bearing no. 19 of 1999 titled as Mutton Singh and others v. Mewa Singh and others, which had been decided by the then Additional Civil Judge (Sr. Divn.), Karnal vide judgement dated 17.8.2006. It was also averred that the matter raised in the present suit had already been decided in the previous suit.Accordingly, a preliminary issue was framed by the Trial Court to the following effect:-

Whether the suit of the plaintiff is barred by the principle of res judicata?

The Trial Court noticed that in the earlier judgement dated 17.8.2006 the court had held that the existence of the passage was not proved and as such the right of alleged easement therein was also not proved. It had been held that even a petition u/s 42 of the Consolidation Act filed by the plaintiff had been dismissed and the same had been held to be sufficient to prove that there was no passage. In the earlier suit the court in the judgement dated 17.8.2006 had returned categoric findings that no rasta existed at the land in dispute and that the plaintiff had failed to prove the existence of the same. The Trial Court in the present suit held that the plaintiff had prayed for a mandatory injunction claiming that the defendants had demolished such alleged rasta and they be directed to restore the same to the plaintiffs.

The Trial Court vide judgement and decree dated 18.11.2009 dismissed the suit holding the same to be barred by the principle of res judicata on the reasoning that the matter directly and substantially in issue in the earlier suit, which had been decided on merits to the same as involved in the present case. The findings returned by the Trial Court holding the suit to be barred by the principle of res judicata have been affirmed by the First Appellate Court vide impugned judgement dated 23.9.2011. Resultantly, the plaintiffs-appellants are in second appeal before this Court.

Mr. Gaurav Arora, learned counsel appearing for the appellants would vehemently contend that the question of res judicata is a mixed question of law and fact and not a pure question of law and as such, such issue could not have been tried as a preliminary issue. Learned counsel would place reliance on a judgement of this Court in case of State of Haryana and another v. Dharam Pal and others 1 1999(1) Civil Court Cases 45 to contend that the issue of res judicata could not have been tried as a preliminary issue, as such issue apart from requiring evidence in the shape of documentary evidence may also need some oral evidence.

As such the only question that would require consideration in the present case is as to whether the Trial Court was bound to decide the issue of res judicata upon framing the same as a preliminary issue or the same was required to be decided after the parties had been allowed to lead their evidence. It would be relevant to refer to Order XIV Rule 2 of the Code of Civil Procedure, which reads as under-

Court to pronounce judgement on all issues:-

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2) pronounce judgement on all issues.

(2) When issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

Order XIV Rule 2 makes it clear that, if, the court is of the opinion that the case or part thereof may be disposed of on an issue of law only it may try that issue first, if, that issue relates to either jurisdiction of the court or a bar to the suit created by any law for the time being enforced. The issue framed by the Trial Court in the present case i.e. whether the suit was barred by the principle of res judicata or fall under sub rule 2 clause (b). In case of Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, a Constitution Bench of the Hon''ble Apex Court had held that a plea of res judicata was a plea of law which concerns the jurisdiction of the court, which tries the proceedings.

The Trial Court has conclusively held having taken note of the factual aspect of the matter that the earlier suit was between the same parties and pertaining to the same very subject matter i.e. rasta in question and the same relief had been sought for and the earlier suit had been decided on merits having heard both the parties and had been dismissed. Accordingly, the plaintiffs have been held to be barred from seeking the same relief in a subsequent suit in view of Section 11 of the Code of Civil Procedure. Even though, the issue of res judicata has been held to be a mixed question of fact and law in certain judgements but the same would depend on the facts of the case. In the case in hand the courts below have held that there is no dispute as regards the facts and as such the plea of res judicata could have been abjudicated upon as a pure question of law. The Hon''ble Apex Court in the case of Abdul Rahman v. Prasony Bai and Another3 2003(1) RCR (Civil) 236 has been placed to lay down as under :-

For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order 14 Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and /constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues.

In the light of the observations as recorded by the Hon''ble Apex Court, 1 find no patent infirmity in the impugned judgements and decrees passed by the courts below. The issue of res judicata in the light of the facts of the case in hand could have been tried as a preliminary issue and has been rightfully done so by the Trial Court.No question of law much less a substantial question of law arises for consideration in the present second appeal and the same is, accordingly, dismissed.

Appeal dismissed.