1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5514 OF 2009 Shaikh Abdul Hamid s/o. Shaikh Abdulla ....Petitioner. Versus Shaikh Jina s/o. Shaikh Amir & ors. ....Respondents. Shri. P.S. Mandlik, Senior Counsel h/f. Shri. A.S. Gandhi, Advocate for petitioner. Shri. P.R. Katneshwarkar, Advocate for the respondent Nos. 1 and 3. CORAM : R.K. DESHPANDE, J. DATE : 14th June 2010. PER COURT : 1. This writ petition is preferred by the original defendant No. 1, challenging the order dated 23rd of July 2009 passed by the learned Civil Judge, Junior Division, Partur. By this order, the application of the petitioner that the plaintiff be prevented from adducing any evidence in respect of issue Nos. 1 and 1-D has been rejected. 2. The Trial Court has observed in the order impugned that the plaintiff has already submitted the list of witnesses, the defendants have 2 ample opportunity to cross examine them. Thus, the matter is at the stage of leading evidence. The plaintiff has not applied for framing issue Nos. 1 and 1-D as preliminary issues. However, in the order impugned the finding is recorded that there is no substance in the contention of defendants that the principle of res-judicata is applicable to the case in hand. 3. The question of res-judicata is a mixed question of law and fact. Therefore, issue Nos. 1 and 1-D are required tobe proceeded with, by permitting the parties to lead the evidence. Unless such evidence is led, no finding can be recorded that the principle of res-judicata is not applicable to the case in hand. Hence, the said finding is set aside. However, the rest of the order passed by the Trial Court is maintained. 4. In the result, in view of the aforesaid clarification, there is no substance in this petition. The same is, therefore, dismissed. It is made clear that the observations made in the impugned order dated 23.7.2009 shall not come in the way of the parties while leading evidence and deciding the same by the Trial Court. [ R.K. DESHPANDE, J. ] ssc/wp5514.09