Murari Lal And Another vs Rajaram

S.K. Mishra, J

Heard Tapan Singh, learned counsel for the petitioner.

This writ application has been filed against the order passed by the learned 4th Additional Civil Judge (S.D.), Dehradun in Suit No. 324 of 2010, Rajaram vs. Meena Hazi & others, rejecting the application of the petitioner for deciding the issue no. 10 i.e. relating to res judicata. However, while passing the order the learned Civil Judge (S/D), Dehradun, has not applied his mind on the question of res judicata. Rather, he has come to the conclusion that the petition has been filed only to delay the proceedings. It is also apparent from the record, the petition filed by the petitioner is not properly articulated one. Hence, this court is inclined to allow the petitioner to withdraw the writ application with a liberty to file an appropriate application in the line of the judgement rendered by the Hon'ble Supreme Court in the case of Jamia Maszid vs. K.V. Rudrappa (since dead) by LRs and another, AIR 2021 SC 4521; AIR online 2021 763 and also 2021 SCC Online SC 792, wherein the Hon'ble Supreme Court has held that the Court while undertaking analysis of the applicability of the plea of res judicata, determines, first, if requirements of Section 11 of the Code of Civil Procedure, 1908 are fulfilled and if it is answered affirmative, it would have to be determined that if there has been any material with regard to alteration of law since in first it was decayed as a result of which, the principle of res judicata would be in applicable. The Hon'ble Supreme Court has further held that submissions that the res judicata can never be decided as a preliminary issue is tenable in certain cases. The Hon'ble Supreme Court has further held, particularly, when this question of law and fact is raised, the issue should raise a full fledged trial, after evidence is adduced.

Therefore, the Hon'ble Supreme Court has held that plea of res judicata may in appropriate case be determined as a preliminary issue, when neither a disputed questions of fact, nor a mixed question of law and fact, is to be adjudicated for dissolving it. In view of the matter, the writ petitioner is allowed to withdraw the writ application with liberty to file a fresh application before the learned Civil Judge properly articulating the pleadings of the parties in the line of the judgement cited above. On such an event, the learned Civil Judge (S/D), shall reconsider the matter without being prejudiced by the orders, he has passed in Suit No. 324 of 2010, Rajaram vs. Meena Hazi & others

It is needless to say that both of the parties shall be heard and the final order on the petition should be passed after discussing the matters before it and shall be disposed of by passing a reasoned and speaking order.

The writ application is dismissed as withdrawn, with liberty as above. .

There shall be no order as to the costs.

Urgent certified copy of this order be granted to the petitioner on proper application.