IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 592 of 2010()
1. A.K.USHARATNAM, D/O.A.C.KARUNAKARAN,
... Petitioner
Vs
1. PANANCHALIL PATHUMMA,
... Respondent
2. KARIM, S/O.P.ALLAKKAM ALIKUNHI,
3. PANIYANKANDI PUTHIYAPURAYIL AYISHA UMMA,
4. HAJIRA, D/O.PELLAKKEN ALIKUNHI,
5. MOIDU, S/O.PALLAKKEN ALIKUNHI, 54 YEARS,
6. MUSTHAFA, S/O.PALLAKKEN ALIKUNHI, 52
For Petitioner :SRI.O.V.MANIPRASAD
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :11/11/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.592 OF 2010
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Dated this the 11th day of November, 2010
O R D E R
The 1st defendant in O.S.No.7 of 2009 on the file of the
Munsiff Court, Taliparamba, has filed this revision impeaching
the correctness of the preliminary finding entered turning down
his challenge to the suit as barred by res judicata. In view of the
decision rendered in a previous suit relating to the very same
plaint property, as between the parties, the present suit is
barred by res judicata, was his case. That contention of the
revision petitioner, after being considered with reference to the
materials placed and the submissions made, was relegated for
consideration at the stage of trial by the learned Munsiff holding
that at this stage it is not possible to enter a definite finding on
the issue of res judicata raised in the suit. Propriety and
correctness of that finding passed under the impugned order is
challenged in the revision invoking the supervisory jurisdiction
vested with this Court under Section 115 of the Code of Civil
C.R.P.No.592/2010 2
Procedure.
2. I heard the learned counsel for the petitioner. Relying
on Thomas Fen v. Parameswaran (2008 (2) KLT 263), it is
contended by the learned counsel that the court below went
wrong in not entering a definite finding on the issue raised over
res judicata, where it could be decided on the basis of the
undisputed facts emerging on the pleading of the case. There
was no challenge that a previous suit had been instituted by the
predecessor of the very same plaintiff in respect of the suit
property and of the adverse decision rendered in such suit,
which is binding on the plaintiff, according to the counsel. That
decision was confirmed in the appeal and it has become final and
conclusive, is the further submission of the counsel. That being
so, relegating that issue of res judicata for consideration with
other issues raised in the suit would cause severe hardship and
prejudice to the revision petitioner/1st defendant, and further
more, such a course overlooking the bar of res judicata
applicable to the case is per se wrong, according to the counsel.
After going through the impugned order passed by the learned
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Munsiff, I find no merit in the submissions made by the counsel.
It is seen from the impugned order that the only materials
tendered by the revision petitioner/1st defendant to sustain his
challenge against the suit on the basis of res judicata were
Exts.B1 and B2, the decree and judgments in O.S.No.605 of 1997
and those in A.S.No.603 of 2003 respectively. Ext.B2 is stated to
be the appellate decree and judgment in Ext.B1 suit. On such
materials produced, the learned Munsiff has expressed the
opinion that in the previous suit, there was no specific issue or
any specific finding with respect to the title of the parties over
the plaint property. He has also expressed the opinion that it is
not possible to conclude that the plaint property involved in the
present suit is exactly the same property covered by the previous
suit in Ext.B1. Though the description of the property may not
be of material, but, the title under which the parties litigated, to
decide the question of bar of res judicata, I find on the facts and
circumstances presented in the case, the learned Munsiff was
fully justified in relegating the issue of res judicata for
consideration with other issues cast in the suit. The decision
relied by the counsel Thomas Fen’s case (cited supra) has only
C.R.P.No.592/2010 4
stated that a plea of res judicata canvassed to resist the trial of a
suit can be determined preliminarily only where it can be done
on the basis of undisputed facts. Very often, res judicata is a
mixed question of fact and law and it is not capable of being
decided preliminarily without taking evidence over the disputed
facts presented in the case. It is only in cases where the suit can
be disposed of on an issue of law only with respect to its
jurisdiction or bar of the court under any law for the time being
in force, as covered by sub rule (2) of Rule 2 of Order XIV of the
Code of Civil Procedure, the court can proceed with
determination of such an issue preliminarily, for which, it should
essentially form an opinion that the case or any part thereof, can
be disposed of on an issue of law only. The learned Munsiff, on
the materials placed has found that the bar of res judicata
canvassed by the revision petitioner/1st defendant cannot be
determined solely on the basis of Exts.B1 and B2 produced in the
case and it required a deeper look with reference to the disputed
facts involved on the basis of materials to be produced by the
parties after affording them an opportunity to do so in trial.
There is no infirmity, leave alone, any irregularity or illegality in
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the order so passed by the learned Munsiff.
Revision lacks merit, and it is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp
C.R.P.No.592/2010 6