IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 CRP.No. 372 of 2011() --------------------- OS.1261/2004 of PRL.MUNSIFF COURT,TRIVANDRUM .................... REVN. PETITIONER/PLAINTIFF ------------------------------------- GOMEZ, S/O. ELLIAS GOMEZ, AGED 67 YEARS, RESIDING AT BEENA BHAVAN, T.C NO. 32/30, MADHAVAPURAM, KADAMPALLY VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.RAJESH P.NAIR RESPONDENT(S): -------------------- 1. MANUAL GOMEZ, S/O.ELLIAZ GOMEZ, RESIDING AT T.C 1/2. NEAR NORTH GATE OF VSSC (ISRO), PALLITHURA.P.O, THIRUVANANTHAPURAM - 695 586. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. THE SUPERINTENDENT OF SURVEY AND LAND RECORDS (RE-SURVEY), KAZHAKKUTTAM, THIRUVANANTHAPURAM - 695 582. R1 BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA R2, 3 BY GOVERNMENT PLEADER SRIRAFEEK V.K. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.372 of 2011 -------------------------------------- Dated this the 22nd day of November, 2011. ORDER The challenge in this civil revision is against the order passed by the learned Principal Munsiff, Thiruvananthapuram in O.S.No.1261 of 2004 closing the suit for the reason that it is barred by res judicata. 2. Petitioner/plaintiff filed the suit for a declaration of fixation of boundary, mandatory injunction, etc. The 1st respondent filed written statement contending that the suit is barred by res judicata in view of the decision in O.S.No.1682 of 1999 filed by petitioner against the 1st respondent, also for fixation of boundary and prohibitory injunction and which was dismissed on merit in the year, 2003 which has become final. The 1st respondent raised other contentions as well on the merit of the case pleaded by the petitioner. No attempt was made to raise a preliminary issue regarding res judicata if at all it is capable of a decision under Order XIV, Rule 2 of the Code of Civil Procedure (for short, “the Code”). Instead the suit was posted for trial in the list and on that day, petitioner was examined through the Advocate Commissioner. After closing of evidence of petitioner the case was posted for defence evidence. At that stage, learned Munsiff passed the impugned order ‘closing the suit’. It is contended by the learned counsel that plea of res judicata only prevents investigation of the dispute involved and does not affect maintainability of the CRP No.372/2011 2 suit. Reliance is placed on the decision in Mary W/o.Thomas and another v. Mathew Joseph and others (AIR 1992 Kerala 305). It is also contended by the learned counsel that since the issue was not heard and decided at the earlier stage and instead, parties went to trial on the issues framed it was not proper to close the suit on a preliminary issue when it was possible to complete the evidence of respondent also and decide all issues involved including maintainability of the suit. 3. Learned counsel for 1st respondent contended that there is no bar in deciding the preliminary issue even after commencement of evidence and petitioner cannot wriggle out of the decision in O.S.No.1682 of 1999 alleging that there is change of circumstances which was no relevance in the issue involved. 4. No doubt, a plea of res judicata only bars investigation of the issue already decided. A preliminary issue under Order XIV, Rule 2 of the Code must be an issue relating to a question of law alone. If it involved question of fact and law, it could not be decided as a preliminary issue. In the present case petitioner has raised some contentions which according to him would take the case out of the mischief of Section 11 of the Code. However, I am not going into that question at this stage. CRP No.372/2011 3 5. As pointed out by the learned counsel for petitioner, in this case evidence of petitioner is over and what is required is to record evidence if any of the respondents. In such situation it would be more appropriate that learned Munsiff after recording the evidence if any of the respondents decides all the issues involved rather than deciding the suit as res judicata alone. 6. It is contended that closure of the suit has the effect of a decree and hence remedy is by way of appeal. Assuming so, having regard to the facts and circumstances I am inclined to think that the revisional jurisdiction under Section 115 of the Code could be exercised rather than driving the parties to an appeal which involves waste of time, energy and time. Resultantly this civil revision is allowed and the impugned order is set aside. Learned Munsiff is directed to complete trial of the case, decide all the issues involved on the materials on record and reach appropriate conclusion as warranted by law. Learned Munsiff is directed to expedite the proceedings. THOMAS P.JOSEPH, Judge. cks