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Judgment
Jyoti Saran, J.—Heard Mr. Najmul Hoda learned counsel appearing on behalf of the petitioner and Mr. Pushkar Narayan Shahi learned Senior Counsel appearing on behalf of the plaintiff-opposite party. This Civil Revision Application is directed against the order dated 07.03.2008 passed by learned Munsif, East Muzaffarpur in Title Suit No. 220 of 2002, whereby the learned trial-court has rejected the objection raised by the petitioners who are defendant in the Court-below raising issues of maintainability of the suit on the anvil of res judicata while observing that it shall be considered along with other issues on the stage of final disposal of the suit.
Mr. Hoda learned counsel for the petitioners has submitted that initially an eviction suit was filed by these petitioners giving rise to Eviction Suit No. 51 of 1988 and which was decreed in favour of these petitioners albeit by directing the opposite party to partial eviction of the suit premises. It is submitted that these petitioners being aggrieved by the decree of partial eviction, preferred eviction appeal giving rise to Eviction Appeal No. 4 of 1995 and in which the Opposite Parties filed a cross-objection. It is submitted that by a judgment and decree passed by the appellate court, the decree of the trial-court stood modified giving certain further area to the decree-holder. Being aggrieved the petitioners have preferred Second Appeal against the appellate decree bearing S.A. No. 80 of 2000 and which is pending consideration before this Court.
It is submitted that the Opposite Parties after filing cross-objection in the appeal had also filed a miscellaneous case u/s 47 of the C.P.C. read with Section 151 thereof and Section 17 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 objecting to the execution proceeding levied by the petitioner for execution of the decree of the trial-court as modified by the appellate court bearing Execution Case No. 7 of 1997. The objection raised by the Opposite Parties, who are plaintiff in the court-below was dismissed vide order passed on 07.09.2001. It is submitted by Mr. Hoda that thereafter the suit in question was filed by the opposite parties raising identical issues and it is in the aforesaid background that the objection has been raised by the petitioners questioning the maintainability of the suit on the principle of res judicata, as the issues stands concluded. The argument of Mr. Hoda has been contested by Mr. Shahi learned senior counsel appearing on behalf of the plaintiff-opposite parties, who submits that the issues involved in the eviction proceedings which is pending consideration in the second appeal is entirely different to the issue raised by the plaintiffs in Title Suit No. 220 of 2002 in which the plaintiffs inter alia have questioned the plea of bonafide made by the petitioners for maintaining the earlier Eviction Suit No. 51 of 1988 and have prayed for restoration of the evicted portion of the suit premises.
I have heard learned counsel for the parties and perused the materials on record including the order impugned in which the learned trial-court after considering the rival contentions has disposed of the objection raised by the petitioners by holding that the plea of res judicata being mixed issue of fact and law would be considered along with other issues during the course of trial. Prima facie, there appears no legal infirmity or jurisdictional error in the order impugned warranting any interference. Having said that, it is equally true that a party cannot be vexed repeatedly for the self-same cause of action. It is perhaps in this background that the objection was raised by the petitioners.
Considering the legal position governing the issue of res judicata and also keeping in mind that such issue cannot be decided in isolation and requires evaluation of evidence, I am yet of the firm opinion that the objection requires an answer because a party cannot be vexed repeatedly. This Court thus without interfering with the order impugned remits the matter to the trial-court with direction to adjudicate on the issue of maintainability of the suit against the principles of res judicata after framing of the issues and after giving due opportunity of hearing to the contesting parties. If the trial-court upon adjudication on the issue of res judicata is of the opinion that the suit is maintainable, it shall proceed to adjudicate upon the other issues framed, in accordance with law. The application is disposed of with the aforesaid directions.