IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 CRP.No. 1040 of 2007() ---------------------- AGAINST THE ORDER DATED 23/10/2007 IN IA. 2465 /2006 IN OS.91/2005 of MUNSIFF COURT, PUNALUR .................... REVN. PETITIONER: PETITIONER/DEFENDANT: --------------------------------------- K.KUNJUMON, PANANPADICKAL VEEDU, PUNCHIRI MUKKU, YEROOR, PATHANAPURAM TALUK REPRESENTED BY POWER OF ATTORNEY ANNAMMA. BY ADV. SRI.S.SREEKUMAR RESPONDENT: RESPONDENT/PLAINTIFF: ---------------------------------- SAJEEVAN, S/O.KOCHUKUNJU, PANANPADICKAL PUTHEN VEETTIL, PANAYAM KARA, YEROOR, PATHANAPURAM TALUK. BY ADV. SRI.B.KRISHNA MANI THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA 2954/07 IN C.R.P 1040/07 DISMISSED 5.2.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 1040 OF 2007 --------------------- Dated this the 5thday of February, 2008 ORDER This revision petition is preferred against the order of the Munsiff, Punalur in IA 2465/06 in OS 91/05 whereby the court held that the question of res judicata raised by the defendant will not survive and therefore dismissed the application. 2. At the outset, it has to be stated that question of res judicata has to be considered elaborately depending upon the facts and circumstances of the case. Full materials should be available before for the court to decide the question of res judicata for the reason that res judicata shuts the entry of the party to the court on account of a previous concluded binding decision. Therefore, the court may have to apply its mind and decide whether all the ingredients necessary to constitute res judicate is available, before rendering a decision. 3. The revision petitioner before me is the defendant in OS 91/05. It is a suit for simple injunction as pointed out by the learned counsel for the respondent. The contentions of the revision petitioner herein is that there was a previous suit OS 395/99 for an injunction wherein he was the defendant and had filed a counter claim with respect to 20 cents of property which he obtained from his mother by virtue of an assignment deed C.R.P No.1040/07 2 No.1435 of 1985. In other words, he claims exclusive title and possession of 20 cents of land comprised in Sy No.672/2A of Yerour Village. The suit was dismissed and the counter claim was allowed. Now there is a matter pending before this court in CRP 516/07 regarding the question of setting aside the ex parte decree and I am informed that against the counter claim an appeal is also preferred by the present respondent before appropriate forum. OS 385/01 was a suit for partition filed by one of the brothers of these parties. Admittedly the revision petitioner and respondent were parties to that suit as well. There also the present revision petitioner claimed exclusive title and possession over 20 cents of land and also filed a counter claim. I have perused the copy made available to me which will show that the suit was decreed except with respect to 20 cents of land claimed by the present revision petitioner. Learned counsel for the respondent is not able to tell me whether the said decision has been challenged before any other court. So as things stand, the materials available are not sufficient to decide the question of res judicata. Therefore, it is a settled principle that the question of res judicata is a mixed question of law and facts and it is not a pure question of law. Only an issue of law, which does not require any evidence to prove it, can be treated as a preliminary issue. If the principles contained in Order XIV Rule 2 are satisfied and issue of res judicata is capable of being decided on the basis of the undisputed facts emerging from the pleadings, it is the duty of C.R.P No.1040/07 3 the court to decide the said issue as a preliminary issue. From the facts available herein, there is a lot of confusion and the full materials are not available to decide the question of res judicata as a preliminary issue. However there are also various other proceedings pending which may have a bearing on the question of res judicata in the case. Therefore, I set aside the order passed by the court below holding that the suit is not barred by res judicata and direct that court to consider the matter afresh either as a preliminary issue, if materials are available, to decide the same and if additional facts are not necessary. But if the court finds that additional facts are necessary and evidence also has to be looked into, the court may decide the issue of res judicata also along with the suit and dispose of the matter in accordance with law. I make it clear that parties have to produce all necessary and relevant documents and materials before the court below so as to help that court to take a decision on the question of res judcata. The civil revision petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps C.R.P No.1040/07 4