# Defendant v. M/s Tulison Industrial (Machines) Pvt. and others

- **Citation:** (2009) 2 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-15
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-m-s-tulison-industrial-machines-pvt-and-others-41384
- **Pages:** 10

## Headnote

Sri G.P. Srivastava
Sri M.M. Khan
Sri M.C. Tiwari
Sri V.P. Mathur
Sri S.A. Imam

Code of Civil Procedure-Order 14 Rule-2
(2)-issue of Resjudicata be decided first
as preliminary issue-reason disclosed by
Trail Court for deciding this issue-heldmisconceived and erroneous.

Held: Para 26

In my opinion, in given facts and
circumstances of the case, the issue of
res-judicata was liable to be decided as
preliminary issue first by postponing the
settlement of other issues involved in
the said suit. It is immaterial that while
2 All] M/s K.G. Plasto Pvt. Ltd V. M/s Tulison Industrial (Machines) and other s
361
deciding the said issue, the court is
required
to
investigate
some
facts
necessary for its disposal.
Case law discussed:
AIR 1976 S.C. 1569, A.I.R. 1953 S.C. 33, AIR
1996 SC 987, AIR 1968 S.C. 1370, AIR 1971
S.C. 1676, AIR 1986 S.C. 1455, AIR 1961 S.C.
1457, A.I.R. 2003 S.C. 718 (Pr. 21).

## Text

360 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
given facts and circumstances, in case
adequate compensation would have been
paid to the petitioner due to injuries
sustained by him due to which he had lost
his leg, he would have been paid much
more compensation than the amount of
Rs.1,38,750/- sought to be recovered from
him, as such it cannot be held that on
account of money withdrawn by him from
the Government exchequer in the tune of
aforesaid amount, the Government has
suffered any loss liable to be indemnified
by the petitioner. It is not a case where the
aforesaid money withdrawn by the
petitioner can be connected with the habit
of the petitioner for doing same kind of
misconduct,
even
if
the
alleged
misconduct is assumed to be proved
against him.

16. Besides aforestated reasons,
having humanitarian approach in the
matter, I find that once the petitioner has
lost
his
leg
in
the
Government
employment due to accident taken place
while he was on election duty, he cannot
be
punished
so
as
to
loose
his
employment itself due to which he had
lost his leg, as such the impugned order
dated 15.11.2007 passed by respondent
no.2, in my considered opinion, for the
aforestated reasons cannot be sustained
and the same is hereby quashed. The
petitioner is reinstated in service with
continuity of service from the date of
impugned
order
till
the
date
of
reinstatement and he shall be paid his full
salary during the aforesaid period, he was
out of employment on account of
impugned order passed against him. The
arrears of salary shall be paid to him
within a period of two months from the
date of production of certified copy of the
order passed by this Court before the
concerned respondent.
17. In view of aforesaid discussion it
is not necessary to go into other questions
involved in the writ petition, as the writ
petition stands decided on short point
discussed hereinbefore.

18. With the aforesaid observation
and direction, writ petition succeeds and
is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ petition no.459 of 2009

M/s K.G. Plasto Chem (I) Private Limited

 ...Defendant-Petitioner
Versus
M/s Tulison Industrial (Machines) Pvt.
and others

 ...Respondents

Counsel for the Petitioner:
Sri Bipin Lal Srivastava

Counsel for the Respondents:
Sri G.P. Srivastava
Sri M.M. Khan
Sri M.C. Tiwari
Sri V.P. Mathur
Sri S.A. Imam

Code of Civil Procedure-Order 14 Rule-2
(2)-issue of Resjudicata be decided first
as preliminary issue-reason disclosed by
Trail Court for deciding this issue-heldmisconceived and erroneous.

Held: Para 26

In my opinion, in given facts and
circumstances of the case, the issue of
res-judicata was liable to be decided as
preliminary issue first by postponing the
settlement of other issues involved in
the said suit. It is immaterial that while
2 All] M/s K.G. Plasto Pvt. Ltd V. M/s Tulison Industrial (Machines) and other s
361
deciding the said issue, the court is
required
to
investigate
some
facts
necessary for its disposal.
Case law discussed:
AIR 1976 S.C. 1569, A.I.R. 1953 S.C. 33, AIR
1996 SC 987, AIR 1968 S.C. 1370, AIR 1971
S.C. 1676, AIR 1986 S.C. 1455, AIR 1961 S.C.
1457, A.I.R. 2003 S.C. 718 (Pr. 21).

(Delivered by Hon'ble Sabhajeet Yadav, J.)

A
short
question
arises
for
consideration is that as to whether on a
question raised by defendant in suit, that
suit is barred by principle of res-judicata
and the question should be decided as
preliminary issue first, it is obligatory
upon the trial court to decide it as
preliminary issue first by postponing the
settlement of other issues involved in the
suit?

2. The brief facts of the case are that
originally there was only one plot no.9 at
Loni Road Industrial Area, Site 2,
Ghaziabad which was allotted to the
plaintiffs-respondents in the year 1969,
but since the plaintiff did not raise any
construction and did not start the
industrial unit as such the lease itself was
cancelled
on
31.01.1972.
After
cancellation of the lease the original plot
no.9 Loni Road Industrial Area, Site 2,
Ghaziabad was divided into 2 plots i.e.
plot nos. 9 and 9A. The plot no.9 admeasuring an area of 15965 sq. yards after
division of original plot no.9 allotted to
M/s Hind Forge Private Limited. It is
further stated that plaintiff-respondent
was required to enter into a compromise
in regard to allotment of said plot with
U.P.S.I.D.C. under certain terms and in a
meeting of Board of Directors of U.P.
S.I.D.C. held on 30.03.1977 a resolution
was passed for such allotment of
remaining portion of original plot no.9 admeasuring an area of 24399 sq. yards, but
the resolution was never given effect to as
the plaintiff-respondent declined to take
any interest in effectuating the said
compromise, thus the resolution dated
30.03.1977 became only a dead letter.

3. It is stated that after lapse of about
29 years a frivolous writ petition was filed
by the plaintiff-respondent before this
Court which was numbered as Civil Misc.
Writ Petition No. 68650 of 2006. In this
writ petition the advertisement dated
08.11.2006 was challenged by means of
which U.P. S.I.D.C. had advertised for
allotment of plot no.9A, Site 2, Loni
Road, Ghaziabad. A further relief was
sought for by the plaintiff-respondent in
the
writ
petition
that
present
petitioner/defendant in suit and other
respondents of the writ petition be
restrained from interfering with the
possession of the plaintiff-respondent
over plot no.9A, Site 2, Loni Road,
Ghaziabad.

4. The aforesaid writ petition was
however, dismissed by the Division
Bench of this Court vide judgement and
order dated 5.1.2007 with finding that the
lease of plot no.9A, Site 2, Loni Road,
Ghaziabad
in
favour
of
plaintiffrespondent was cancelled on 30.01.1972
as the plaintiff-respondent had failed to
comply with the terms and conditions of
the lease deed and further the compromise
dated 30.03.1977 was never given effect
to. The order dated 05.01.2007 passed by
this Court in aforesaid writ petition is on
the record as Annexure no.1 to the writ
petition. It is further stated that when the
plaintiff-respondent did not succeed in the
writ petition then on frivolous grounds the
suit in question was instituted on
09.03.2007 in which the precisely the
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
questions were raised which were earlier
raised in the aforesaid writ petition, a
copy of the plaint of Original Suit No.
400 of 2007 is on the record as Annexure
no.-2 of the writ petition. The defendantpetitioner filed a written statement raising
the question of res-judicata alongwith
other incidental questions. The copy of
same is on record as Annexure no.-3 to
the writ petition. It is also stated that
petitioner had filed all the relevant
documents including copy of Civil Misc.
Writ Petition No. 68650 of 2006 and
order of Division Bench of this Court
dated 05.01.2007 passed in the said writ
petition. But the trial court has passed the
impugned
order
dated
17.10.2008
refusing to decide the question of resjudicata as preliminary issue first on the
ground that the issue has already been
decided against the petitioner while
disposing of application for temporary
injunction vide order dated 20.11.2007,
against the said order F.A.F.O. No. 3390
of 2007 is pending before this court and
further the issue shall be decided after
taking evidence of the parties, meaning
thereby while disposal of suit itself, hence
this petition.

5. Heard learned counsel for the
parties and perused the records.

6. Learned counsel for the petitioner
has contended that Section 11 of CPC
embodies the doctrine of res-judicata and
issue of res-judicata being a legal issue
has to be decided as preliminary issue
first under Order 14 Rule 2 C.P.C. before
final adjudication of the suit itself, as the
question of res-judicata bars the trial of
subsequent suit or issue in subsequent suit
which has been decided earlier and also
relates to the jurisdiction of court.
Whereas learned counsel appearing for
the respondents has submitted that in
given facts and circumstances of the case
the impugned order passed by the court
below cannot be held to be faulty so as to
call for any interference by this Court.

7. In order to appreciate the
contention of learned counsel for the
petitioner, the relevant portion of the
provisions of Section 11 CPC is extracted
as under:-

"11, Res-judicata- No court shall try
any suit or issue in which the matter
directly and substantially in issue has
been directly and substantially in issue in
a former suit between the same parties, or
between parties under whom they or any
of them claim, litigating under the same
title, in a Court competent to try such
subsequent suit or the suit in which such
issue has been subsequently raised, and
has been heard and finally decided by
such Court.
Explanation VIII:- An issue heard and
finally decided by a Court of limited
jurisdiction, competent to decide such
issue, shall operate as res-judicata in a
subsequent suit, notwithstanding that such
Court of limited jurisdiction was not
competent to try such subsequent suit or
the suit in which such issue has been
subsequently raised."

8. From a plain reading of
provisions of Section 11 C.P.C. it is clear
that a court is prohibited to try any suit or
issue in which the matter directly and
substantially in issue has been directly
and substantially in issue in a former suit,
between the same parties or between the
parties under whom they or any of them
claim, litigating under the same title, has
been heard and finally decided by a court
of competent jurisdiction.
2 All] M/s K.G. Plasto Pvt. Ltd V. M/s Tulison Industrial (Machines) and other s
363
9. In Syed Mohd. Salie Labbai Vs.
Mohd. Hanifa, AIR 1976 S.C. 1569 it
was held that before a plea of res-judicata
can be given effect, the conditions
mentioned herein after must be proved--
(1) that the litigating parties must be the
same, (2) that the subject matter of the
suit also must be identical, (3) that the
matter must be finally decided between
the parties, (4) that the suit must be
decided
by
a
court
of
competent
jurisdiction.

10. In Smt. Raj Lakshmi Dasi and
others Vs. Banamali Sen and others,
A.I.R. 1953 S.C. 33, Hon'ble Apex Court
has held that the condition regarding the
competency of former Court to try
subsequent suit is one of the limitations
engrafted on the general rule of resjudicata by Section 11 of the Code and
has application to suits alone. When a
plea of res-judicata is founded on general
principles of law, all that is necessary to
establish is that the Court that heard and
decided the former case was a Court of
competent jurisdiction. It does not seem
necessary in such cases to further prove
that it has jurisdiction to hear the later
suit. The plea of res-judicata on general
principles can be successfully taken in
respect of judgements of Courts of
exclusive
jurisdiction,
like
revenue
Courts,
land
acquisition
Courts,
administration Courts etc..

11. In Church of South India
Trust Association Vs. Telugu Church
Council AIR 1996 SC 987, it was held
that Section 11 (excluding Explanation
VIII) envisages that the judgement in a
former suit would operate as a res judicata
if the Court which decided the said suit
was competent to try the same by virtue
of its pecuniary jurisdiction and the
subject matter to try the subsequent suit
and that it is not necessary that the said
Court
should
have
had
territorial
jurisdiction to decide the subsequent suit.

12. From aforesaid legal position, it
is clear that the court which has decided
former suit or issue, must have had
jurisdiction to decide former as well as
subsequent suit both, but this rigour of the
provisions of Section-11 of the CPC is
relaxed by explanation (viii) attached with
the said section whereby the applicability
of principle of res-judicata is extended to
the cases where an issue was heard and
finally decided by a court of limited
jurisdiction, competent to decide such
issue, despite that such court of limited
jurisdiction was not competent to try such
subsequent suit or suit in which such issue
has been subsequently raised.

13. Now next question arises for
consideration is that as to whether the
decision in writ petition operates as resjudicata in a subsequent suit filed on the
same cause of action or matter? This
question
had
been
directly
under
consideration before the Hon'ble Apex
Court in Union of India Vs. Nanak
Singh, AIR 1968 S.C. 1370, wherein it
was held that decision on writ petition
would operate as res-judicata in a
subsequent suit filed on the same matter.
In that case, appellant had filed a writ
petition challenging the termination of his
temporary service on the grounds of
infringement of Article 311 of the
Constitution and the competence of
authority ordering termination. The Single
Judge of the Punjab High Court has
allowed the writ petition but in appeal
before Division Bench the writ petition
was dismissed, however, without any
observation on the competence of Officer
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
terminating the service of appellant.
Thereafter the appellant filed suit for
declaration
that
his
services
were
terminated by an authority lower in rank
than the competent authority and as such
he should be deemed to be in service.
Hon'ble Apex Court has held that the suit
was barred by res-judicata. The pertinent
observations made in para 5 of the said
decision are extracted as under:-

"5. . . . . . There is no good reason to
preclude, such decisions on matters in
controversy in writ proceedings under
Article 226 or Article 32 of the
Constitution from operating as res
judicata in subsequent regular suits on
the same matters in controversy between
the same parties and thus to give limited
effect to the principle of the finality of
decisions after full contest. The Court in
Gulabchand's case, AIR 1965 SC 1153
left open the question whether the
principle of constructive res judicata may
be invoked by a party to the subsequent
suit on the ground that a matter which
might or ought to have been raised in the
earlier proceeding but was not so raised
therein, must still be deemed to have been
decided."

14. The same view has been
reiterated by Hon'ble Apex Court again in
State of Punjab Vs. Bua Das Kaushal,
AIR 1971 S.C. 1676. In G.K. Dudani
and others Vs. S. D. Sharma and
others, AIR 1986 S.C. 1455 Hon'ble
Apex Court has held that the principle of
res-judicata is applicable even though
Section 11 C.P.C. in terms does not apply
to the writ proceedings. The pertinent
observation made by Hon'ble Apex Court
in para 18 of the decision is as under:-

"18. In view of this categorical
finding in Chauhan's Case, it was not
open to the direct recruits to reagitate this
point.
Although
by
reason
of
the
Explanation which was inserted in
Section 141 of the Code of Civil
Procedure, 1908, by the Code of Civil
Procedure
(Amendment)
Act,
1976,
Section 11 of the Code does not in terms
apply to any proceeding under Article 226
of the Constitution, the principle of res
judicata does apply to all writ petitions
under Article 226. This point was,
therefore, barred by the principle of res
judicata and should never have been
allowed by the High Court to be
reagitated."

15. Earlier to the aforesaid decisions
in Daryao and others Vs. State of U.P.
and others, AIR 1961 S.C. 1457 a
Constitution Bench of Hon'ble Apex
Court has considered the applicability of
principle of res-judicata in proceeding
under Article 32 in respect of a decision
rendered by High Court under Article 226
of the Constitution of India on same issue.
The pertinent observations made by
Hon'ble Apex Court in para 19 of the
decision are extracted as under:-

"19. We must now proceed to state
our
conclusion
on
the
preliminary
objection raised by the respondents. We
hold that if a writ petition filed by a party
under Art. 226 is considered on the merits
as a contested matter and is dismissed the
decision thus pronounced would continue
to bind the parties unless it is otherwise
modified or reversed by appeal or other
appropriate proceeding permissible under
the Constitution. It would not be open to a
party to ignore the said judgment and
move this Court under Art. 32 by an
original petition made on the same facts
2 All] M/s K.G. Plasto Pvt. Ltd V. M/s Tulison Industrial (Machines) and other s
365
and for obtaining the same or similar
orders or writs. If the petition filed in the
High Court under Art. 226 is dismissed
not on the merits but because of the
latches of the party applying for the writ
or because it is held that the party had an
alternative remedy available to it, then
the dismissal of the writ petition would
not constitute a bar to a subsequent
petition under Art. 32 except in cases
where and if the facts thus found by the
High Court may themselves be relevant
even under Art. 32 If a writ petition is
dismissed in limine and an order is
pronounced in that behalf, whether or not
the dismissal would constitute a bar
would depend up on the nature of the
order. If the order is on the merits it
would be a bar; if the order shows that
the dismissal was for the reason that the
petitioner was guilty of laches or that he
had an alternative remedy it would not be
a bar, except in cases which we have
already indicated. If the petition is
dismissed in limine without passing a
speaking order then such dismissal
cannot be treated as creating a bar of res
judicata. It is true that, prima facie,
dismissal in limine even without passing a
speaking order in that behalf may
strongly suggest that the Court took the
view that there was no substance in the
petition at all: but in the absence of a
speaking order it would not be easy to
decide what factors weighed in the mind
of the Court and that makes it difficult
and unsafe to hold that such a summary
dismissal is a dismissal on merits and as
such constitutes a bar of res judicata
against a similar petition filed under Art.
32. If the petition is dismissed as
withdrawn it cannot be a bar to a
subsequent
petition
under
Art.
32.
Because in such a case there has been no
decision on the merits by the Court. We
wish to make it clear that the conclusion
thus reached by us are confined only to
the point of res judicata which has been
argued as a preliminary issue in these
writ petitions and no other. It is in the
light of this decision that we will now
proceed to examine the position in the six
petitions before us."

16. In view of aforestated legal
position, it is clear that a decision on writ
petition
under
Article
226
of
the
Constitution in certain circumstances
creates a bar of res-judicata but in certain
circumstance as indicated herein before, it
does not constitute a bar of res-judicata in
subsequent proceeding or suit. However it
completely depends upon the nature of the
order passed in writ petition. For example
if the writ is dismissed on merit after full
contest by the parties then in respect of
same subject matter, the decision on writ
petition would operate as res-judicata in
subsequent proceeding or suit in respect
of same cause of action or matter but if
the writ petition is dismissed on the
ground of alternative remedy or delay or
latches, it does not constitute a bar of resjudicata in subsequent proceedings or suit
filed subsequently in respect of the same
matter. However, these instances are
merely illustrative in nature and cannot be
held to be exhaustive on the point in
issue. Therefore, the concerned court has
to examine the issue from the aforesaid
angle while taking decision on any
individual case.

17. At this juncture it is also
necessary to examine the content and
import of Order 14 Rule 2 C.P.C., which
is extracted as under:-
"Order XIV Rule 2 - Court to
pronounce judgment on all issues:- (1)
Notwithstanding that a case may be
366 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
disposed of on a preliminary issue, the
Court shall, subject to the provisions of
sub-rule (2), pronounce judgment on all
issues.
(2) Where 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."

18. From a plain reading of Order 14
Rule 2 C.P.C. it is clear that sub-rule (1)
of said rule postulates a general principle
that inspite of fact that a case may be
disposed of on a preliminary issue despite
thereof the court is obliged to pronounce
judgment on all issues but the aforesaid
principle is subject to exception carved
out by sub-rule (2) of said rule, which
provides that where 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 issue
of law alone, it may try that issue of law
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. Therefore, in my opinion, in
order to satisfy the essentials of Order 14
Rule 2(2) the issue of law must be related
either to the jurisdiction of the court or to
a bar to the suit created by any law for
time being in force and further the court
must be of opinion that the case or any
part thereof may be disposed on an issue
of law only.

19. Thus the questions which arise
for consideration are that as to whether
issue of res-judicata is issue of law or not
and further as to whether it relates either
to the jurisdiction of the court or to a bar
to the suit created by any law for time
being in force? In order to find out
accurate
answer
to
the
aforesaid
questions, it would be useful to look into
the provisions of Order 14 Rule 1 CPC.
which deals with the framing of the
issues. Order 14 Rule 1(1) CPC speaks
about how the issues arise in case and
states that issues arise when a material
proposition of fact or law is affirmed by
the one party and denied by the other.
Sub-rule (2) of Order 14 Rule 1 describes
that material propositions are those
propositions of law or fact which a
plaintiff must allege in order to show a
right to sue or a defendant must allege in
order to constitute his defence. However,
Sub-rule (4) of said Rule further provides
that issues are of two kinds: (a) issues of
fact, and (b) issues of law. Except the
aforesaid kinds of issue, there does not
exist any third kind or category of issue
like mixed issue of law and fact both,
either under the aforesaid provisions of
C.P.C, or under any other provision of
said Code. Therefore,in my opinion, it is
not open for this court to add any other
category of the issue by way of
interpretation which was not intended to
be included in the said Code.

20. Further it is necessary to point
out that every issue of law is based or
grounded on certain facts as no legal
2 All] M/s K.G. Plasto Pvt. Ltd V. M/s Tulison Industrial (Machines) and other s
367
proposition can be alleged in pleadings in
vacuum. Similarly, the principle of resjudicata is such proposition of law which
may be pleaded by the defendant in order
to constitute his defence, that suit or any
issue involved in a suit is barred by the
principle
of
res-judicata.
Therefore,
merely because the issue of res-judicata
requires investigation of facts, in my
considered opinion, it cannot be held that
issue of res-judicata is mixed issue of law
and facts both. It is wrong and misconceived notion that the issue of resjudicata is mixed issue of law and fact
both.

21. It appears that there are certain
provisions in the Code and other
enactments creating forum for appeal to
the higher court against the decision of
trial court or lower appellate court or
tribunal wherein phrases are commonly
used in such manner which may create
some doubt or confusion in the mind of
courts, such as Section 96 (4) C.P.C.
provides that no appeal shall lie except on
question of law from a decree in any suit.
Section 100 (3) provides that in an appeal
under this Section the memorandum of
appeal shall precisely state substantial
question of law involved in the appeal.
Section 109 C.P.C. provides that an
appeal shall lie to the Supreme Court
from any judgment or decree or final
order in a civil proceeding of High Court
if the High Court certifies that the case
involves a substantial question of law of
general importance. The involvement of
"question
of
law"
and
"substantial
question of law" to create ground for
appeal to the higher court or forum used
under the aforesaid provisions of the Code
indicated herein before, in my considered
opinion, should not be confused with the
expression "issue of law" and issue of fact
arise in the suit used under Order 14
Rules 1 and 2 or under other provisions of
C.P.C.
The
question
of
law
or
substantial question of law connotes
quite different things than that of "issue of
fact" and "issue of law" used under Order
14 Rules 1 and 2 or at other places in
C.P.C.,
therefore,
the
meaning
of
aforesaid
expressions
should
be
understood in the context in which such
expressions are used. In this view of the
matter, in my opinion, involvement of
mixed question of law and fact both
may create a ground of appeal in case
statute so provides but mixed issue of law
and fact both cannot arise in a suit as held
herein before. However, the issue of law
and fact both may arise separately and
distinctly in a suit.

22.

Since
another
essential
ingredient for operation of provisions of
Order 14 Rule 2 (2) is that the issue of
law must relates either to the jurisdiction
of court, or to a bar to the suit created by
any law for time being in force, therefore,
now next question arises for consideration
as to whether issue of res-judicata relates
to the jurisdiction of court or to a bar to
the suit created by any law for the time
being in force? In this connection it is
necessary to point out that under the
provisions of Order 14 Rule 2 (2) C.P.C.
where the issue of law relates to the
jurisdiction of the court or to a bar to the
suit created by law for instituting the
claim, the same shall be tried as
preliminary issue. Thus the issue of resjudicata must have some material bearing
with the jurisdiction of the court to try
subsequent suit or issue in a subsequent
suit
which
has
been
directly
and
substantially in issue in former suit and
has been heard and finally decided by the
court having competence to decide such
368 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
suit or issue. Therefore, in this manner,
the issue of res-judicata, in my considered
opinion, must relates to the jurisdiction of
the court and also create a bar by law for
time being in force to try a subsequent
suit and thus satisfies the essential
ingredients of Order 14 Rule 2(2) C.P.C.

23. In this connection a reference
can also be made to a decision of Hon'ble
Apex Court rendered in Abdul Rahman
Vs. Prasony Bai and another, A.I.R.
2003 S.C. 718 (Pr. 21), wherein it was
held that the issue of res-judicata and
constructive res-judicata as also the
maintainability of the suit can be
adjudicated upon as preliminary issues.
The pertinent observations made in para21 of the decision are extracted as under:

"21. 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 XIV
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 resjudicate 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."

24. In view of law laid down by
Hon'ble Apex Court and legal position
stated herein before, I have no doubt in
my mind that the issue of res-judicata
should be decided as preliminary issue
provided other essential conditions of
Order 14 Rule 2 (2), as to whether on a
decision upon issue of res-judicata the
case or any part thereof may be disposed
of finally, is also satisfied.

25. In this connection it is necessary
to point out that it is upon the concerned
court to examine that on decision upon
the issue of res-judicata as preliminary
issue, the entire case or any part thereof
shall be disposed of finally or not. In my
opinion, it will depend upon the facts and
circumstances of the each individual case
and no hard and fast rules can be laid
down in this regard. Therefore, it is
necessary for the court concerned to
examine as to whether while deciding the
issue of res-judicata in a particular suit or
case the entire case or any part thereof
may be disposed of or not and after such
assessment if the concerned court form an
opinion that entire case or any part thereof
may be disposed of by deciding the issue
of res-judicata involved in the case
concerned, only in that event of the matter
the concerned court is under legal
obligation to decide the issue of resjudicata as preliminary issue first by
postponing the settlement of other issues
otherwise it is not under obligation to
decide such issue as preliminary issue
first but such opinion of the court should
be based on objective material on record
and should not be based on mere whims.

26. Now coming to the facts of the
case again I find that trial court has
deferred the disposal of the issue of resjudicata and declined to decide the same
as preliminary issue first for two reasons.
First reason was that the court has already
decided the issue of res-judicata while
deciding the application for temporary
injunction
against
which
FAFO
is
pending before this Court and another
reason was that the issue of res-judicata
shall be decided after evidence of the
2 All] Ram Babu Dwivedi V. State of U.P. and others
369
parties which means that the issue shall be
decided while disposal of the suit. In my
opinion, both the reasons given by the
trial court for deferring the disposal of
issue of res-judicata are misconceived and
erroneous for the reasons that settlement
of issues as preliminary issue is a stage in
proceeding of the suit whereas disposal of
application for temporary injunction is
supplemental proceeding different from
the proceedings of the suit as described
under Section 94 of the Code despite
being a proceeding in pending suit. As is
clear from the heading of the section
itself, that such proceedings are normally
resorted to achieve the ends of justice
during the pendency of main proceedings
of the suit. Therefore, the issue of resjudicata does not necessarily require to be
decided by the trial court while disposal
of
temporary
injunction
application
during the pendency of the suit, which is
supplemental proceeding in pending suit,
accordingly disposal of issue of resjudicata in the said proceeding, in my
opinion, is of no legal consequence. So
far as another ground for deferring the
disposal of the issue of res-judicata is
concerned, I am of the considered opinion
that for the reasons given herein before,
the view taken by the trial court also
appears
to
be
erroneous
and
misconceived. In my opinion, in given
facts and circumstances of the case, the
issue of res-judicata was liable to be
decided as preliminary issue first by
postponing the settlement of other issues
involved in the said suit. It is immaterial
that while deciding the said issue, the
court is required to investigate some facts
necessary for its disposal.

27. In view of the aforesaid
discussion, I am of the considered opinion
that the view taken by court below is
wholly erroneous and contrary to the view
taken by me, therefore, the impugned
order dated 17.10.2.008 can not be
sustained and the same is hereby quashed.
The trial court is directed to consider the
case of the petitioner afresh in the light of
observations made herein before and
decide the issue of res-judicata raised by
the petitioner as preliminary issue first
and thereafter proceed with the suit
accordingly and shall decide the same
within a period of six months from the
date of production of certified copy of the
order passed by this Court.

28. However, the question of resjudicata shall be decided expeditiously
preferably within a period of one month
from the date of production of certified
copy of this order before the court
concerned.

29. With the aforesaid observation
and direction, writ petition succeeds and
allowed to the extent indicated herein
before.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 02.03.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 41 of 2009

Ram Babu Dwivedi

...Petitioner
Versus
State of UP and others ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava

Counsel for the Respondents:
Sri R.N. Pandey
S.C.