1. After hearing the learned counsel for the parties I am of the view that the Court below exceeded its jurisdiction in treating issue No. 4 as a preliminary issue. Issue No. 4' whether the suit is barred by principle of res judicata? OPD' has been ordered to be treated as preliminary by the impugned order. The application for treating issue No. 4 as preliminary was filed after the issues were framed. As many as six issues have been framed on merits.
2. Issue No. 4 was sought to be treated as a preliminary issue on the basis that a decree for specific performance was passed in favour of the defendant by judgment and decree of this Court dated 22-3-1983 which would operate as res judicata between the parties. The undisputed facts are that one house was allotted to Ram Lal by the Rehabilitation Department. Half portion of the same was agreed to be sold to Sohan Lal and possession of that half portion was delivered to him under the agreement to sell. When Ram Lal filed a suit for specific performance of the contract. The trial Court decreed the suit for specific performance but the lower Appellate Court dismissed the suit after recording a finding that the agreement of sale was vague because the property was not specified. However, on second appeal to this Court, the judgment and decree of the trial Court granting specific performance of the contract was restored on the finding that the agreement of sale was not vague because whatever was agreed to be sold was given possession of to Sohan Lal and, therefore, the parties very well knew what was agreed to be sold. Therefore, for the portion, which was in possession of Sohan Lal, a decree for specific performance was granted by the trial Court and this Court. Admittedly, the remaining portion of the house remained under the ownership and possession of Ram Lal.
3. On 6-5-1983, the legal representatives of Ram Lal filed a suit for permanent injunction against Sohan Lal to restrain him from taking possession of another part of the remaining portion of the house or open site which was in possession of Ram Lal and now under their possession. Injunction was sought because Sohan Lal defendant wanted to encroach upon some part of their house and in case he succeeds in encroaching on any part of their house during the pendency of the suit, in that case it was prayed that a decree of mandatory injunction be passed against him. As already observed, six issues were framed on merits. Under issue No. 1 the plaintiffs had to prove that they were owners in possession of the site as alleged in para 3 of the plaint. Under issue No. 6 it was for the defendant to prove whether he (the defendant) was owner in possession of the site in dispute. If it is proved on evidence that the defendant is owner in possession of the site in dispute on the basis of the decree for specific performance, then under issue No. 4 a finding has to be returned that the suit is barred by the principle res judicata. If under issue No. 1 it is held that the plaintiff is owner in possession of the site in dispute and this site is different from the site which was the subject-matter of the decree for specific performance, then under issue No. 4 a finding will be returned that it does not operate as res judicata, because the present suit relates to the other portion regarding which decree for specific performance was not granted. There can be a third eventuality as well, i.e. partly the suit property may be the same which was the subject matter of the earlier specific performance decree. Then to that extent the finding under issue No. 4 would be that it operates res judicata and for the remaining portion, it will not operate as res judicata. These matters cannot be decided without evidence and if evidence is to be recorded then even the issues on law cannot be treated as preliminary issues as held by the Supreme Court in S. S. Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497. The following passage may be read with advantage:--
'Under O. 14, R. 2 Civil P. C., where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact apart from the issues of law until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit'.
4. Of course, on a question of law on which no evidence is to be recorded, the same can be tried as a preliminary issue. I am bound by the decision of the Supreme Court. The same view has been taken by this Court in Shri Digvijaya Woolen Mills Ltd. v. Mohinder Kumar Jain 1979 Pun LJ 194, and Raghbir Singh v. Pritam Singh, 1982 Pun LJ 218. A Full Bench of Madhya Pradesh High Court in Ramdayal Umraomal v. Pannalal Jagannathji, AIR 1979 Madh Pra 153, has also taken the same view.
5. On the other hand, the learned counsel for the defendant-respondent has relied upon Subhash Chand Loomba v. J. H. F. Hukam Chand Trikha (1984) 1 Ren CJ (Punj & Har); Babu Ram v. Pakiza Begum 1972 Cur LJ 792 (Punj); Kuldip Raj Gupta v. Smt. Raj Rani (1977) 1 Rent LR 293 Surinder Kumar v. Shiva Rice General Mills (1983) 2 Land LR 591 and The Pamali Jadid Coop. Agricultural Service Society, Pamali, v. Megha Singh, 1981 Pun LR 403, for the proposition that even though some evidence has to be led, yet such an issue can be tried as a preliminary issue.
6. I have gone through all the judgments referred to by the parties and find that this matter is fully covered by the Supreme Court judgment in S. S. Khann's case (AIR 1964 SC 497) (supra). That judgment has been followed by the Full Bench of the Madhya Pradesh High Court in M/s. Ramdayal Umrao Mal's case (AIR 1979 Madh Pra 153) (supra) as also by S. P. Goyal, J. in Shri Digvijaya Woolen Mills' case (1979 Pun LJ 194) (supra). Therefore, these are the two judgments in line with the Supreme Court decision. The judgments cited on behalf of the respondent have not referred to the binding judgment of the Supreme Court in S. S. Khanna's case (supra) and, therefore, they are of no help. Moreover, they are on their own peculiar facts.
7. Even before me it was not disputed by the learned counsel for the respondent that if evidence has to be recorded on an issue, then it cannot be tried as a preliminary issue in view of the Supreme Court judgment referred to above. The stress of his argument was that only little evidence has to be produced on the issue of res judicata, namely, copies of the judgment in the earlier litigation between the parties and probably the site plan which was filed in that case. As already noticed, facts will have to be gone into in this case under issues 1 and 6 because the specific performance decree is only for a part of the house which was owned by Ram Lal and not for whole. The heirs of Ram Lal now want to protect their possession with regard to the remaining portion of the house and this matter can only be decided after whole evidence is led. Hence, the Court below was in error in ordering the trial of issue No. 4 as a preliminary issue.
8. It was then urged on behalf of the respondent that even if order of the Court below is erroneous, it could not be interfered with in view of the decision in Saraswati Spinning Mills v. Gheru Lal Bal Chand, 1980 Pun LJ 572 and Hardwari Lal v. Pohkar Mal, AIR 1978 Punj and Har 230, because the trial Court has exercised discretion whcih cannot be interfered with in revision. The facts given above clearly go to show that under no circumstance issue No. 4 is to be tried as a preliminary issue and issue No. 4 could not be decided unless proper findings were recorded on issues 1 and 6 which were issues on merits. Issue No. 4 regarding res judicata is entirely dependent on the evidence which will be recorded on issues 1 and 6. In this situation, the order of the Court below is either without jurisdiction or in excess of jurisdiction. The aforesaid decisions relied upon by the learned counsel for the respondent, therefore, do not stand in the way for correcting such an erroneous order of the Court below.
9. For the reasons recorded above, this revision is allowed, the order of the Court below dated 28-5-1984 is set aside and a direction is issued to it to try all the issues together expeditiously. The parties, through their counsel, are directed to appear in the trial Court on 10-9-1984.
10. Revision allowed.