IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2126 of 2006 UMESH KUMAR, Son of Bhola Prasad @ Bhola Singh, resident of Village- Phulhara, P.S. Raja Pakar, District-Vaishali, at present residing at Dharampur, Ramraj, P.S. Deshri, District- Vaishali....(Plaintiff in the court below)-Petitioner. Versus 1. Bhola Prasad Singh @ Bhola Singh, son of late Deonandan Rai, Village-Phulhara, P.S. Raja Pakar, District- Vaishali..(Defendant 1st in the Court below). 2. Smt. Jina Rai wife of Bhola Prasad Singh @ Bhola Singh, son of Deonandan Rai, Village-Phulhara, P.S. Raja Pakar, District-Vaishali at present residing at Dharampur, Ramraj, P.S. Deshri, District- Vaishali....(Defendant 2nd Set in the court below)...Opposite Parties. ----------- For the petitioner : Mrs. Veena Rani Prasad, Advocate and M/S. Sandeep Patil and Vishal Saurabh, Advocates. For the Opposite Parties : M/S. Shrinandan Prasad Singh and Ashok Kumar No.1, Advocates. --------- 10. 21.12.2009. Heard learned counsel appearing on behalf of the petitioner as well as the opposite party no.1. Other opposite parties have not appeared despite service of notice. This Civil Revision is directed against the order dated 16.09.2006 passed by the Munsif Ist, Hazipur, in Title Suit No. 70 of 2000 whereby the Title Suit concerned had been declared to be barred under the provisions of Section 11 of the Code of Civil Procedure. Thus, the same had been found not maintainable. The office has reported that in view of the earlier order passed in Civil Revision No. 153 of 2001(Sk. Junarhi Vs. Sk. Mohammad and others)2002(4) P.L.J.R.Page 138, by a Bench of this Court, the present civil revision does not appear to be maintainable as the remedy against same is by way of filing a 2 regular appeal. The suit valuation being Rs. 1,000/- only, the appeal aforesaid would be maintainable before the District Judge concerned. Learned counsel for the petitioner submitted that in the aforesaid decision a Bench of this Court had held that in cases where the issue had been framed with regard to question of the suit being barred by res judicata and evidence had been led and, thereafter, the court had come to the finding that the suit concerned was barred by principle of res judicata, that would amount to a decree under the meaning of Section 2 of the Code of Civil Procedure(hereinafter referred to as ‘the Code’) and the proper remedy for challenging such order would be by filing of appeal as the Civil Revision would not be maintainable. However, it was submitted that in the present case no preliminary issue had been framed by the court concerned and the matter of the suit being barred by principle of res judicata had been decided against the plaintiff-petitioner, thus, in that case the order could not be construed to be a decision within the jurisdiction of the court. In support of her submission, learned counsel for the petitioner had placed reliance upon the aforesaid decision rendered by this Court in Sk. Junarhi Vs. Sk. Mohammad and others (Supra). Learned counsel had also placed reliance upon another decision rendered by a Bench of this Court in Dr. Shashi Kumar Narain Vs. Smt. Pratima Sinha & Ors. reported in 3 2002(1) P.L.J.R. Page 549. It is submitted that in the aforesaid decision this Court had held that when a petition had been filed under Order XIV Rule 2 of the Code of Civil Procedure then it was the discretion of the court to consider whether such issue could be decided as a preliminary issue or not. If such issue depended only on the points of law and not on factual aspect then the same could be decided as a preliminary issue. However, it had been held that without framing any issue any such decision being arrived at could not be construed to be a decision within the jurisdiction of the court concerned. Learned counsel for the opposite party no.1 had submitted that issues in this case had already been framed on 21.01.2005 and one of the issues i.e., Issue no. 6 was as to whether the plaintiff is bound by the decree of the earlier Title Suit No. 82 of 1985. It was submitted that thereafter a petition had been filed that the issue of suit being barred by principle of res judicata be decided first. Upon that petition, parties were heard and impugned order had been passed and it had been held that the decision of the aforesaid earlier suit would be binding upon the plaintiff-petitioner. As a result, it had to be held that the same had created bar to the suit under the provisions of Section 11 of the Code of Civil Procedure. Thus, it was contended that the court below had rightly decided the issue. Earlier, a Title Suit No. 82 of 1985 was filed by the opposite party no. 1 against Jina Rai, the opposite party no.2 for a declaration that she was not the 4 legally wedded wife of the plaintiff and the alleged child (the present petitioner) was not borne out from plaintiff’s cohabitation with her. Other relief was for passing a decree of permanent injunction against the defendant (the opposite party no.2 herein) from proceeding further in maintenance case filed under Section 125 Cr.P.C. Defendant no. 2 appeared in that case and filed written statement and also examined herself as witness. She was cross-examined in part, however, thereafter she did not appear and the suit was decreed on contest against her holding therein that she was not a legally weeded wife of the plaintiff and her son was not borne out due to co-habitation by the plaintiff. That order was never challenged and had become final. Thereafter, as stated in the plaint of the present Title Suit No. 70 of 2000, the petitioner after attaining the majority filed a partition suit and then he could come to know the decree of the earlier Title Suit. Subsequently, he had filed the present suit for declaration that he was son of the defendant no.1- opposite party no.1 and also for declaration that the decree of Title Suit No. 82 of 1985 would not be binding upon him. However, thereafter, in the present case a petition was filed for declaration that the suit is not maintainable on account of its being barred by the principle of res judicata. In the present case, the issues had already been framed, one of the issue being as to whether the decision of earlier Title Suit bearing Title Suit No. 5 82 of 1985 would be binding upon the plaintiff or not. Thereafter, a petition was filed for deciding the issue of the suit being barred by principle of res judicata at the first instance. Since the issues were already framed and thus, after filing of petition, rejoinder was also filed by the petitioner, it was also well known to him as to what was going to be decided by the concerned court. Thus, it could not be held that the decision had been taken under Section 14(2) of the Code without framing an issue. Since the issue concern had been decided as a question of law based upon admitted facts, i.e., the decree passed in earlier Title Suit No. 82 of 1985, which had not been denied by the plaintiff, the court had taken it up and decided a question of law itself and had reached to conclusion that the suit was barred by res judicata. In Dr. Shashi Kumar Narain (Supra) it was admitted fact that no issue had been framed till the date of the order under challenge whereas in the present case it is admitted fact that the issues had been framed and one of the issues was as to whether the decree of earlier suit would be binding upon the plaintiff or not. In that background of the case, the aforesaid decision would be of no help to the petitioner. In Sk. Junarbi Vs. Sk. Mohammad & Ors.(Supra) this Court has held that before a decision is to be termed as a decree, three ingredients are required to be fulfilled; firstly, that there should be a formal expression of an adjudication by the court concerned; secondly that determination should be with regard to all or any of the 6 matters in controversy between the parties and thirdly the decision should be conclusive so far as the court passing the order is concerned. In the present case, all the ingredients are present and the controversy between the parties was as to whether the suit was barred by res judicata or not and the decision of the earlier suit was binding upon the plaintiff or not. The said controversy has been determined by the court below conclusively. As such, I am of the opinion that the impugned order is a decree within the meaning of Section 2(2) of the Code, and as such, the Civil Revision is not maintainable and the petitioner should pursue the remedy of appeal. As a result, this Civil Revision is, accordingly, dismissed with a liberty to the petitioner to prefer an appeal before appropriate forum. If such appeal is preferred then, the court concerned should dispose of the same in accordance with law without being prejudiced by any observation of this Court made in the present case. U.K. (Dr. Ravi Ranjan,J)