( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5015 OF 2004 1. Subhadrabai w/o Bharat Kadam, R/o Radi, Tal. Ambajogai, District Beed. 2. Savitrabai w/o Shankar Gangane, R/o as above. PETITIONERS VERSUS Sambhaji s/o Madhavrao Kombade Since deceased, by L.Rs. A) Gangabai w/o Sambhajirao Kombade, R/o Mondha, Ambajogai, Dist. Beed. B) Kantabai w/o Pralhadrao Kombade, R/o as above. C) Sanjay s/o Pralhadrao Kombade, R/o as above. D) Vijay s/o Pralhadrao Kombade, R/o as above. E) Ajay s/o Pralhadrao Kombade, R/o as above. F) Netaji s/o Sambhajirao Kombade, R/o as above. G) Shantabai w/o Shivajirao Kombade, R/o as above. RESPONDENTS ..... Mr. V.R. Sonwalkar, advocate for the petitioners. Mr. A.B. Kale, advocate for respondents No. 1A to 1G. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 12th March, 2010] ( 2 ) ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioners are original defendants in suit (R.C.S. No. 3/1993) filed by the respondent for specific performance of an agreement of sale dated 08-12-1989. The respondent asserted that the petitioners agreed to alienate land Gut No. 422 to the extent of 82 Ares area for consideration of Rs. 20,000/-. He was ready and willing to purchase the land. However, the petitioners declined to execute registered sale-deed as per terms of the agreement. Consequently, he sued them for specific performance of the sale agreement. The petitioners resisted the suit by filing written statement (Exh-B). They denied all the material averments made by the respondent. They also denied that they had accepted amount of part payment towards earnest as alleged. They submitted that the suit is based on concocted averments. They further contended that the price of the lands at ( 3 ) village Radi was Rs. 25,000/- per acre in the year 1989 and yet, only Rs. 20,000/- was shown as the price which itself indicates that the transaction was by way of security for repayment of the loan. They contended that the suit was barred for the reason that the respondent’s previous suit for declaration of ownership and injunction (R.C.S. No. 335/1990) was dismissed. They also submitted that issues framed in the previous suit were similar issues and were answered against the respondent and, therefore, the subsequent suit was barred by principle of res judicata. They contended that the subsequent suit was not maintainable in view of provisions of Order-II Rule-2 of the Civil Procedure Code because in the previous suit, relief of specific performance was not asked for though it could have been claimed. 3. The petitioners filed applications (Exh-37 and Exh-40) seeking decision on issues No. 1, 6 and 14 treating them as preliminary issues. They submitted that the suit can be decided on findings of those three issues. Their applications were rejected vide the ( 4 ) impugned order and as such, this writ petition is filed by them. 4. Heard learned counsel. 5. The purport of Order-XIV Rule-2 of the Civil Procedure Code is required to be noticed. On close reading of Rule 2, it is manifest that ordinarily, the suit is required to be decided on all issues. However, exception is carved out in sub-rule (2) of Order-XIV Rule-2 of the Civil Procedure Code. Sub-rule (2) reads as follows : “(2) 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 an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and ( 5 ) may deal with the suit in accordance with the decision on that issue.” The object of Rule 2 is to give discretion to the Court to decide the suit on any issue of law at the preliminary stage. In other words, the intention of the Legislature in carving out exception by way of sub-rule (2) is to give appropriate lee way to the trial Court to decide issues of law at preliminary stage in order to shorten life of litigation. It is, however, conspicuous that when certain issues of law and facts are mixed up then, they may not be decided at preliminary stage. 6. On perusal of the issues framed in the previous suit (R.C.S. NO. 335/1990), it is explicit that the Court had framed following issues as issue No. 1 and 4. “(1) Does the plaintiff prove that defendants agreed to sale (sell) to the plaintiffs suit land admeasuring 82R out of gat No. 422 ? (4) Does the plaintiffs prove that he is in possession of suit land ?” ( 6 ) The trial Court answered both these issues in the negative. The issues framed in the subsequent suit (R.C.S. No. 3/1993), which are sought to be treated as preliminary issues for the purpose of determination, are as follows : “(1) Does the plaintiff prove that the defendant agreed to sell him the suit land in consideration of Rs. 20,000/- ? (4) Does the plaintiff prove that sale deed was agreed to be executed before Gudipadva Festival of 1990 ? (6) Does the plaintiff prove that possession of suit land was given to him at the time of making Sathekhat ? (14) Is the suit not tenable in view of provisions of Order 2 Rule 2 of the C.P.C. ?” 7. On consideration of the tenor of the issues in both the suits, it is amply clear that identical issues of facts are framed in the subsequent suit. It is ( 7 ) unfortunate, however, that the trial Court did not frame issue regarding bar of res judicata under section 11 notwitstanding the fact that objection was raised regarding maintainability of the subsequent suit. The issue raised in respect of agreement of sale in the previous suit prima facie seems to have been answered in the negative though Mr. Kale would submit that such finding is not specifically recorded by giving reasons and the Court merely dealt with question of possession and, therefore, the suit was dismissed. 8. Be that may as it is, the question remains as to whether the subsequent suit could be regarded as barred by provisions of Order II Rule 2 of the Civil Procedure Code. The issues can be treated as preliminary issues if no evidence is required to be adduced and finding can be recorded only on examination of legal position. In the present case, the trial Court can examine whether the subsequent suit is barred by provision of Order II Rule 2 of the C.P. Code or under section 11 of the C.P. Code. In other words, whether the legal bar is created under the above provisions can ( 8 ) be examined. It may be that due to absence of categorical finding about the issue pertaining to execution of the agreement of sale, the trial Court may not consider that subsequent suit is barred by principle of res judicata. The trial Court may having regard to the nature of findings and observations of the appellate Court, come to the conclusion that the subsequent suit is barred by provisions of Section 11 Explanation VIII of the Civil Procedure Code. It would be appropriate, therefore, for the trial Court to raise such issue regarding bar of res judicata and to decide the same as a preliminary issue besides the issue pertaining to objection raised about tenability of the suit under Order II Rule 2 of the Civil Procedure Code. The request made by the petitioners could not be turned down only because other issues were framed and that the decision on preliminary issues could give rise to “multiplicity of litigation”. The reasoning ascribed by the learned trial Judge is rather improper and tainted with vice of perversity. The trial Court had wrongly assumed that no question of res judicata could arise in the matter. ( 9 ) 9. Mr. Kale would submit that the petition is liable to be dismissed due to delay and latches. He would submit that the suit is pending since 1993 due to attempts of the petitioners to protract the litigation. It is worthy to be noted that the petitioners had filed civil revision application bearing No. 500/1997, challenging the impugned order. The petitioners have made statement in paragraph No. 8 of the petition that the civil revision application was admitted and interim relief was granted. It was only after amendment of Section 115 of the Civil Procedure Code that the civil revision application was dismissed because it was found untenable. Thereafter, the writ petition is filed after about 6/7 months. It appears that interim relief was granted by this Court on 18-08-2004 and thereafter, time was consumed in bringing legal representatives of the deceased respondent on recored. All said and done, there does not appear excessive lethargy on part of the petitioners so as to dismiss the petition on the ground of delay and latches. 10. For the reasons aforestated and since the suit ( 10 ) is pending for a long period, the petition is allowed with direction that the relevant issues shall be treated as preliminary issues and may be decided within period of four (4) months after hearing both the sides. The parties are directed to appear before the trial Court on 5th April, 2010. The trial Court shall not be influenced by any of the observations made hereinabove. No costs. The Rule made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/wp5015-04