1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Revision Application No.55 of 2010 (Devidas Bagoji Dahat and another v. Haribhau Bagoji Dahat and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri Vinay Dahat, Advocate for Applicants. S/Shri V.T. Deshpande and K.R. Lule, Advocates for Respondents. Coram : R.K. Deshpande, J. Dated : 20 th October, 2010 This civil revision application challenges the order dated 12-11-2009 passed below Exhibit 55 by the learned Civil Judge, Junior Division, Arvi, in Civil Suit No.26 of 2006. By this order, the application filed by the defendants for dismissal of the suit, as it is barred by the principles of res judicata, has been rejected. The notice in this matter was issued by this Court on 30- 7-2010. In response to the said notice, Shri Deshpande, the learned counsel, appears for the respondents. It is not disputed by the learned counsel appearing for the applicants that the issue of res judicata has not been raised in the written statement. He submits that such an issue could not be raised in the written statement, as the earlier suit was decided after filing of the written statement and, therefore, he has moved the application under Section 11 of the Code of Civil Procedure. 2 It cannot be disputed that the question of res judicata is a mixed question of law and fact and unless it is pleaded and the evidence is placed on record to substantiate the same, it cannot be decided. If the decision in the earlier suit is rendered subsequent to filing of the written statement, it is open for the defendants to file an application for amendment of the written statement, which shall be considered by the Trial Court in accordance with law. However, without raising such an issue in the written statement, the same cannot be decided by filing an application. Be that as it may, the question of res judicata is a mixed question of law and fact and the issue to that effect has to be framed and the parties are required to be permitted to lead evidence to substantiate the same. In view of this, the application Exhibit 55 filed by the defendants appears to be pre-mature and the Trial Court was, therefore, right in rejecting the said application. However, the Trial Court, while deciding the application, could not have recorded the findings on merits. In view of the above, the instant civil revision application needs to be dismissed by keeping open the question of res judicata. The defendants are at liberty to move an application for amendment of the written statement and introduce such a plea, which shall be considered by the Trial Court in accordance with. However, while considering such a plea, the observations made in the impugned order shall not influence the mind of the Trial Court. With these observations, the present civil revision application is dismissed. Judge pdl