res judicata - some advance points (practice purpose)
Whether issue of res judicata can be decided as preliminary issue?
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 964 of 2015
Decided On: 05.04.2019
Cooper Pharma Vs. Shamshad Ahmad
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.
Whether second suit will be barred by res judicata if first suit was dismissed as it was premature?
IN THE HIGH COURT OF BOMBAY
Second Appeal No. 795 of 2005
Decided On: 16.04.2019