This petition under section 115 of the Code of Civil Procedure calls in question the order, dated 5th of March, 1989 of the trial Court whereby an application under Order 1-t, Rule 2, C.P.C. Filed by the petitioner for treating the issue of res judicata as a preliminary issue was dismissed.
2. This revision petition arises out of a suit for recovery of Rs.1,94,60,000 filed by the respondent against the petitioner on 5th of April, 1987. The plaint contains reference to some previous litigation between the parties.
This suit was resisted by the petitioner by filing a written statement in which various preliminary objections were raised inter alia, that the suit was hit by ,; the principle of res judicata embodied in section 11 of the C.P.C.
3. On the pleadings of the parties. The learned trial Court on 13-1-1988 proceeded to frame seven issues out of which issue No.3 relates to question of the suit being barred by res judicata. It appears that on 22nd of March, 1988 the petitioner/defendant fled an application under order 7, Rule 11, C.P.C. For rejection of the plaint on the ground that the suit on the face of it was barred by section 11 of the C.P.C. This application was, however, rejected by the learned trial Court on 5-6-1988 and held that the plea of res judicata raised by the petitioner could not be decided without framing of any issue and recording evidence. Subsequently on 22-6-1988, the present application under Order 14, Rule 2, C.P.C. Was filed by the petitioner in which it was prayed that the issues relating to the bar of res judicata and estoppel be treated as preliminary issues. This application was resisted by the respondent and was dismissed by the trial Court on 5-3-1989. This order has been assailed in the present revision petition.
4. A preliminary objection was raised by Mr. A.H. Najfi, Advocate, appearing on behalf of the respondent to the maintainability of this revision petition on the ground that the order refusing to treat an issue as a preliminary issue does not amount to a case decided and is, therefore, not revisable under section 115 of the C.P.C. Learned counsel cited various judgments on the general questions as to what amounts to a case decided and in what circumstances an order of the subordinate Court can be interfered with in the exercise of revisional jurisdiction. None of these cases, however, relates to the specific question arising in the present case. On the other hand it has been held by this Court in the case of Muhammad Saleem v. Hafiz Ahmad Din PLD 1975 Lah. 425 that rejection of an application under Order 14, Rule 2, C.P.C. Amounts to a case decided. Same view was expressed by the Dacca High Court in River Steam Navigation Co. Ltd. v. The Commissioners for the Port of Chittagong and another PLD 1961 Dacca 412. The case of P.C.
Gangulee v. Sm. Kadhuri Devi AIR 1952 Pat. 281 in support of his contention that the present revision petition is competent has also been relied upon by the learned counsel. 1n view of these judgments, it is clear A that the impugned order amounts to a case decided and as such preliminary objection raised by the respondent has no merit and is overruled.
5. As regards merits, a reading of the impugned order shows that the trial Court refused to treat the issue of res judicata as a preliminary issue on the ground that it is evident from the routine practice that if the issues are treated as preliminary and evidence is recorded then the case cannot be decided easily for a long time. Both the issues require a thorough evidence from both the sides and it takes a long time. This reason hardly furnishes any justification for dismissing the application. It is highly doubtful whether any such routine practice exists and even if it does, a routine practice could not be relied upon in this behalf as the matters . Before the Court are to be decided in accordance with law and not on the basis of routine practice. The order of the trial Court clearly suffers from material. Irregularities and, therefore cannot. Be sustained. '
Section 11 of the C.P.C. Which embodies the principle of res judicata on its plain language bars the trial of any suit or issue which has been previously' decided between the same parties by a Court of competent jurisdiction. Bar contained in this section is to the trial of suit and not only to its decision, the underlying object being that no person should be vexed twice for the same cause. C If the resolution of the issue is postponed till the end of the trial for its decision along with other issues, the very purpose of section 11 shall be defeated. In Shahul Hamid v. Tahir Ali 1980 SCMR 469 this provision was held to be mandatory and it was observed that the Court is bound to apply it despite any agreement to the contrary between the parties. It is thus clear that the refusal of the trial Court to treat the issue of res judicata as a preliminary issue is contrary to law.
6. The anxiety of the trial Court that the litigation is not prolonged unnecessarily though laudable, is misplaced in the present case. To accept the proposition that in every case all the issues must be tried at one time would be rendering the provisions of Order 14, Rule 2 and Order 15, Rule 3, C.P.C.
Nugatory. This matter has to be determined on the facts of each case and the nature of the preliminary objections. As regards the plea of res judicata, the only evidence required is the pleadings and other documents in the previous litigation. The learned counsel for the respondent has undertaken to produce evidence on I the preliminary question of res judicata within a period of one month when called upon to do so by the trial Court. This undertaking should suffice to allay any I apprehensions with regard to unnecessary delay in the progress of the suit.
The upshot of the above discussion is that this revision petition is accepted, the impugned order of the trial Court, dated 5-3-1989 is set aside and it is directed .That the issue of res judicata shall be tried and decided as a preliminary issue in the terms of Order 14, Rule 2, C.P.C. There shall be no order as to costs.
Both the learned counsel have requested that instead of directing the trial of question of res judicata alone as a preliminary issue, all legal issues arising in the case be ordered to be tried as