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High CourtsSingle Bench(2011) 04 JH CK 0186

Bijay Kumar Dubey vs Krishna Kumar Khemka and Another

Jharkhand High Court · Decided on 27 April 2011

HON’BLE JUDGES
Dhirubhai Naranbhai Patel, J
RESULT
Dismissed
CASE NUMBER
Writ Petition (C) No. 2470 of 2010

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Judgment

9 paragraphs · 345 words

D.N. Patel, J.—The present writ petition has been preferred by the original Defendant of Title Suit No. 53 of 2008 whereby, an application preferred by the present Petitioner (original Defendant No. 2) under Order VII Rule 11 raising preliminary issue has been dismissed by learned Sub JudgeI, Deoghar by order dated 29th August, 2009 in Title Suit No. 53 of 2008.

2.

When the matter is called out, learned Counsel for the Petitioner is absent. Neither the matter is mentioned, nor anybody appeared on behalf of the Petitioner.

3.

Even on previous occasion i.e. on 23rd July, 2010, following order was passed by this Court:

Nobody appears for the Petitioner.

Put up this case under the same heading in the next week.

4.

Looking to the facts and circumstances of the case and looking to the impugned order, passed by the trial court, I see No. reason to entertain this writ application mainly for the reason that the preliminary issue raised by original Defendant No. 2 are, in fact, mixed question of fact and law and without taking evidence it cannot be decided. It is the contention of original Defendant No. 2 that there is absence of cause of action coupled with the fact that the suit is hit by the principles of constructive res judicata.

5.

Looking to the impugned order, passed by the trial court, it appears that principles of res judicata is not applicable, looking to the dispute between the parties and looking to the previous litigation. Moreover, so far as absence of cause of action is concerned, which is alleged by Defendant No. 2, is also incorrect. To establish this issue, evidence is required to be taken and therefore, this issue cannot be decided as preliminary issue below an application given under order VII Rule 11 of the CPC and therefore, the learned trial court has. rightly dismissed such application preferred by original Defendant No. 2.

There is No. error committed by the learned trial court.

6.

There is No. substance in this writ petition. Hence, the same is hereby, dismissed.