IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1266 of 2006 HIRA LAL Versus CHANDRAMA SINGH & ORS ----------- For the petitioner: Mrs. Madhuri Lata For O.P.Nos.2 & 3 : Mr. Shrinandan Pd.Singh & Mr. Ashok Kumar For O.P.No.1 : Mr. Arun Bihari Mathur. 4. 16.12.2008 Heard counsel for the parties. In view of the facts mentioned in I.A.No. 4867/2006, the name of petitioner no.1, who is said to have died on 23.9.2006, is directed to be expunged. The heirs and legal representatives of petitioner no.1 in form nos. 2 to 6 being there, he will be deemed to have been substituted by them. The issue of resjudicata raised by the petitioner essentially required interpretation of the two judgments and the pleadings connected thereto. For this purpose the court earlier had already passed an order that it would decide the same as a preliminary issue. Having done so, this was not open for the court to leave the matter in the midst by taking a plea that such question of resjudicata is essentially a mixed question of fact and law. The net effect of the preliminary 2 issue in terms of Order 14 Rule 2 C.P.C. would be to ensure that the suit does not continue for long if the same can be decided on this issue alone. For this purpose the resjudicata flowing from section 11 of the Code of Civil Procedure is essentially a question of law and when only requirement for the court would be to look into the judgment of this Court in the connected first appeal wherein almost all the issues raised by the petitioner have been answered, the court has to only now find out whether the suit in question is barred by principle of resjudicata. This Court, however, will not express any opinion on such claim of the parties as this very issue has now to be gone into by the court below. Since the court has shirked from the responsibility in deciding the question by way of a preliminary issue that by itself is a clear jurisdictional error. In that view of the matter, this Court would set aside the impugned order and direct the court below to decide the question of resjudicata as a preliminary 3 issue after hearing all the parties. This civil revision application is, accordingly, allowed. (Mihir Kumar Jha,J.) Surendra/