IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.2053 of 2007 Bishram Mehton & Ors Versus Ramanuj Mehton & Ors ---------------------------------- 5. 08.12.2011 Heard the parties. By the impugned order the Court below has refused the prayer of the petitioner to decide the issue of res judicata as preliminary issue. Learned counsel on behalf of the petitioner has vehemently submitted that the suit is barred by res judicata and therefore proceeding further with the suit would cause unnecessary expense and harassment to the parties and therefore, the learned Court below should have decided this issue as preliminary issue. Contesting the submissions on behalf of the parties, the learned counsel on behalf of the opposite parties has submitted that the issue of res judicata being a mixed question of law and fact should be decided along with the other issues in the suit in view of the provision contained in order 14 Rule 1 of the Civil Procedure Code. The learned Court below, in the impugned order, has held that the issue of res judicata, as raised by the defendant, involves determination of the disputed facts 2 and as such the mixed question of law and fact cannot be decided as preliminary issue. There is no illegality or jurisdictional error in the impugned order. This application is accordingly dismissed. However, the learned court below shall decide the issue of res judicata along with the other issues arising in the suit without being prejudiced by its order. Saif/- (V. Nath, J.)