1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.6107 of 2007 Bhinwa Ram and Others VERSUS Richpal and Others Date of Order :::: 05/02/2010. Hon'ble Mr. Justice Dalip Singh Mr. Amit Singh Shekhawat, Counsel for the Petitioners Mr. Ram Kumar Sharma, Counsel for the Respondents *** By the Court : Heard learned counsel for the parties. Matter comes upon on the application submitted by the respondents for vacation of the interim stay order dated 16.08.2007 by which the proceedings before the learned trial Court have been stayed. The submission of the learned counsel for the parties is that the submissions on the application as well as of the main petition being same, the main petition itself may be heard and decided. Prayer made is allowed. 2 This writ petition has been preferred against the order passed by the learned trial Court dated 20.07.2007 deciding the application filed under Order 14 Rule 2 (2), C.P.C. by the petitioners for deciding Issues No.4 and 6 as a preliminary issues. The learned trial Court has come to the conclusion that the Issue No.4 is with regard to the maintainability of the suit and the Issue No.6 is with regard to the plea of rejudicata. The learned trial Court has also came to the conclusion that the aforesaid issues, in the facts and circumstances of the present case, based upon the pleadings, which have come on record, appear to be mixed questions of fact and law and cannot be decided without recording the evidence. In the facts and circumstances, I am of the view that no exception can be taken to the aforesaid order passed by the learned trial Court as the defendant shall have to lead evidence in support of his plea. The learned trial Court has not committed any jurisdictional error in so far as it has come to the conclusion that the issues raise mixed question of fact and law. Admittedly, whether or not the suit is barred as resjudicata it depends upon the question whether there was an earlier suit between the parties wherein the subject matter was the same as in the present case. All these matters are required 3 to be gone into. In the facts and circumstances, the objections raised by the respondents with regard to the maintainability of the writ petition as well as for vacation of the interim order deserves to be upheld. This writ petition is accordingly dismissed. Interim order dated 16.08.2007 stands vacated. The application submitted by the respondents for vacation of the interim order is allowed. The stay application stands disposed of. (Dalip Singh), J. Ashok/