Friday, 25 October 2019

Whether issue of res judicata can be decided as preliminary issue?

 Order 14 Rule 1 is in regard to the framing of issues. There are two kinds of issue. First, issue of fact; and second, issue of law. Under sub-rule (2) of Order 14, Rule 2, C.P.C., there is third kind of issue, which is mixed issue of law and of fact. In the present case, plea of res judicata has been taken by the defendant whereupon issue was framed by the trial court and it has been decided in favour of the plaintiffs. An issue of law can be decided as a preliminary issue whereas the mixed issue of fact and law cannot be decided as a preliminary issue. It is well settled that an issue of res judicata is a mixed issue of law and fact and it has to be decided on proper pleadings and evidence of parties. Thus, this Court is of the view that the trial court has committed illegality in deciding the issue of res judicata as the preliminary issue. However, suit need not to be dismissed at this stage under the provisions contained in Order 7 Rule 11 C.P.C and is apparently not barred by any law.

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

Hon'ble Judges/Coram:
Lok Pal Singh, J.

Citation: AIR 2019 Uttar 111.
Read full judgment here: Click here
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