Gayatri Devi vs Bhuneshwar Singh and Others

R.N. Prasad, J.—The petitioner is aggrieved by order dated 29.1.2005 whereby the petition filed by the opposite party under Order 14 Rule 2 C.P.C. to decide the question with respect to res judicata as preliminary issue has been allowed and the parties have been directed to adduce evidence. The taw is well settled that if the suit is barred or hit by any law then such issue can be decided as preliminary issue. It has been stated that in the year 1960 a suit for partition was brought against the father and brothers of the petitioner which was decreed. The admitted position is that the petitioner was not party to the suit nor had knowledge about the suit. In the plaint it has been stated that subsequently the petitioner learnt about the suit.

Learned counsel for the opposite party stated that the fact is admitted and as such no evidence is required and it can be decided as a preliminary Issue. On the other hand, learned counsel for the petitioner stated that the fact is not admitted which is clear from the plaint itself. The petitioner in the plaint has stated about the knowledge much after the suit was decided. Therefore, it cannot be said that it is an admission. Subsequent knowledge about the suit is not an admission. The court also did not say in clear words that issue involved does not require evidence rather in fact, in the order itself it directed both the parties to adduce evidence for this purpose. Therefore, it can safely be said that there is no admission and such issue is a mixed question of law and fact and as such I find that the order impugned suffers from legal infirmity. Accordingly, the revision petition is allowed. The order impugned is set aside.