CRP 117/2010 BEFORE THE HON’BLE MR JUSTICE B.P.KATAKEY Heard Mr GP Bhowmick, learned counsel for the petitioners. None appears for respondent, despite service of notice. It appears from the order of Lawazima Court dated 18th February 2011 tha t the notice is deemed to have been served on the respondent. The petitioners, who are the defendants in Title Suit No.48/2009, pendin g with the Court of the learned Munsiff No.1, Tinsukia, being aggrieved by the o rder dated 10th February 2010 passed by the learned Munsiff rejecting the petiti on filed by them for framing issue ~ as to whether the suit of plaintiff is barr ed by the principles of res-judicata ~ have filed the present application. It appears from materials made available on record that the present peti tioners filed a petition, being Petition No.26/2010, praying for framing issue w ith regard to res-judicate and to decide the same as the preliminary issue, cont ending inter alia that the subsequent suit, being T.S. No.48/2009 is hit by the principles of res-judicata, in view of the judgment & decree dated 5th September 2006 passed in TS No.14/2006, between the same parties, whereby and where-under the present petitioners’ right, title & interest over the suit land in TS No.48 /2009 has been declared. The said Petition was rejected by the learned Munsiff by the order dated 10th February 2010 by holding that since subsequent suit, being TS No.48/2009 i s for declaring that judgment & decree dated 5th September 2006 passed in the pr evious suit, being TS No.14/2006, between same parties, is null & void, inoperat ive, being obtained by fraud, the question of resjudicata does not arise in the suit. Learned Court below also observed that since the plea of fraud is a mixed question of law and fact, no preliminary issue could be framed to decide such pl ea as it requires examination of witnesses. It has been submitted by learned counsel for the petitioners that apart from the prayer for a decree declaring that earlier judgment and decree dated 5t h September 2006 passed in TS No.14/2006 as null and void, and inoperative, the present respondent in TS No.48/2009 has also prayed for a decree declaring the r ight, title and interest over the suit land, which was also the land involved in the previous suit, being TS No.14/2006, and hence if the Court declines to pass a decree declaring the earlier judgment & decree as null and void, and inoperat ive, the question of res-judicata would definitely come, since by the previous j udgment and decree passed in the earlier suit, the right, title and interest of present petitioners were declared in respect of the land involved in the subsequ ent suit being TS No.48/2009 and as such, learned Court below ought not to have declined to frame issue relating to res-judicata, which, however, may not be dec ided as the preliminary issue. It has also been submitted by learned counsel for the petitioners that till date no issues have been framed by the learned Court below. It appears that present petitioners, in the aforesaid Petition, prayed f or framing issue relating to res-judicata and deciding the same as the prelimina ry issue, contending inter alia that by judgment and decree dated 5th September 2006 passed in earlier suit, being TS No.14/2006, the right, title and interest had been declared in favour of the present petitioners in respect of the land in volved in the subsequent suit, being TS No.48/2009. It also appears from the pra yer made in the plaint, filed in TS No.48/2009, that apart from praying for a de cree declaring that the earlier judgment and decree dated 5th September 2006 pas sed in TS No.14/2006 is null and void, and inoperative, a further prayer was mad e for declaration of the right, title and interest of the plaintiff/ respondent- herein in respect of the suit land, over which the right, title and interest of present petitioners had been declared in the earlier suit, being TS No.14/2006. That being the position, the question of res-judicata maybe relevant, in the event learned Court below declines to pass a decree declaring the judgment and decree dated 5th September 2006, passed in previous suit, being TS No.14/ 20 06, as null and void, and inoperative and as such, the learned Court below ought to have framed the issue relating to res-judicata, which had been declined by t he impugned order. In view of the above, the impugned order dated 10th February 2010, passe d by learned Munsiff No.1, Tinsukia, in TS No.48/2009, is set aside. The learned Court below is directed to frame issues relating to the res-judicata, while fra ming other issues in the suit. The present petitioners are directed to appear be fore the learned Court below on 4 April 2011, when notice will be issued to the present respondent, who is plaintiff in TS No.48/2009, as he has not entered app earance before this Court. The learned Court below shall thereafter dispose of t he suit in accordance with law. The revision is allowed to the extent indicated above. No costs.