IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1744 of 2007 SHAKUNTALA BHARTI & ORS Versus KRISHNA MOHAN BHARTI & ORS ----------- 5 06.10.2010 Learned counsel for the petitioners submits that by the impugned order passed in Title Suit No. 454 of 2005 the petitioners’ prayer for framing a preliminary issue with regard to maintainability of the suit has been refused on the ground that the issue of res judicata, being a mixed question of law and fact, requires evidence to be led on behalf of both the parties and would be decided at the time of taking final decision in the suit. Learned counsel further submitted that even if the matter would have been allowed in favour of the petitioners then, at best, a preliminary issue would have been framed by the court below to be decided after hearing the respective parties. Thus, by that order itself lis could not have attained finality. In that view of the matter, it is contended that this civil revision would not be maintainable in view of the law laid down by the Apex Court in the cases of Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others 2 ((2003) 6 Supreme Court Cases, 659) and Surya Dev Rai v. Ram Chander Rai and others ((2003) 6 SCC, 675) as well as by a Division Bench of this Court in the cases of Durga Devi v. Vijay Kumar Poddar and others and its analogous cases(2010(2) PLJR 954). Learned counsel for the petitioners, therefore, seeks permission to convert this civil revision into a writ application under Article 227 of the Constitution of India in view of the decision of the Division Bench rendered in Durga Devi (supra) referred to above. Permission is accorded Let the petitioners convert this civil revision into a writ application under Article 227 of the Constitution of India by 4th of November, 2010, failing which it shall stand rejected as not maintainable without further reference to a Bench. SC ( Dr. Ravi Ranjan, J.)