State of Haryana and Another vs Dharampal and Others

G.C. Garg, J.—This order will dispose of Civil Revision Nos. 2516 and 2517 of 1993.

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

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.

Learned counsel for the petitioner, however, placed reliance on a decision of this Court in the case of Punjab State Co-op. Milk Producers Fed. Ltd. v. M.M. Munjal 1996 2 113 P.L.R. 181. It was held in this case that the question of law and fact and it necessitates taking of evidence. However, in the peculiar facts of this case, it was ordered that issue be treated as a preliminary issue. This case does not lay down a general proposition of law, but was decided on its own facts.

It is by now the settled view of this Court that an issue which needs evidence for its disposal can not be treated as a preliminary issue. Reference in that behalf may be made to the case of Smt. Ram Kali and Ors. v. Sohan Lal 1984 P.L.J. 600. There are many other decided cases taking the same view. The question whether the suit is barred because of the provisions of Order 9 Rule 9 cannot be decided unless the copy of the plaint, written statement, if any and the order passed are produced and proved. It may also necessitate oral evidence.

Thus, it will not be fair to record evidence initially on the plea of resjudicata and thereafter on merits. In the situation, I am of the opinion that no useful purpose would be served by granting the application and directing the preliminary issue to be framed and tried in the first instance, especially when this issue certainly needs evidence not only in the shape of documentary evidence, but may also need some oral evidence. I thus see no ground to interfere in exercise of jurisdiction u/s 115 CPC with the order of the trial Court.

In view of the above, these petitions are dismissed. No costs.

Parties through their counsel are directed to appear before the trial Court on 10.11.1998 for further proceedings in accordance with law. Trial Court is also directed to dispose of the suit at an early date.