Haryana State Electricity Board vs J.S. Chotani

I.S. Tiwana, J.—Having heard the learned counsel for the parties. I find that the impugned order of the trial Sub-Judge dated September 24, 1987 cannot possibly be sustained in view of the provisions of Order 14, Rule 2(2), C.P.C. This sub-clause lays down in no uncertain terms that where one of the issues arising from the pleadings is covered by clause (b) of this sub-clause, the same may be treated as a preliminary issue.

The only contention raised on behalf of the respondent is that since the petitioner-defendant is bound to lead evidence in support of its plea with regard to resjudicata, the said issue may not be treated as preliminary issue. I hardly find any substance in this submission in view of the fact that the evidence relevant to the decision of that issue is in the form of earlier pleadings of the parties and the judgment of this Court. For this purpose the Court has not to record any elaborate evidence.

For the reasons recorded above, I allow this petition and while setting aside the impugned order dated September 24, 1987, direct the trial Court to treat issue No. 3 as a paeliminary issue.