1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL REVISION APPLICATION NO. 5/2011 (Vitthal Govindrao Awchat and six others ..versus Deepak Kashinath Pakmode) ................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................... Shri V.K.Paliwal, counsel for Applicants ... CORAM : R. K.DESHPANDE, J. DATED : 31st JANUARY, 2011. This revision application challenges the order dated 2nd December, 2010, passed by the learned Civil Judge, Junior Division, Hinganghat, in R.C.S. No. 33/10. By this order, the application filed by the applicant/original defendant for dismissal of the suit on the ground that the same is barred by the principle of res-judicata, has been dismissed. 2. In pursuance to the notice in the suit, the applicants/defendants filed Written Statement, 2 dated 29.7.2010 and also filed an application for dismissal of the suit. The application has been dismissed on the ground that, in view of the judgment delivered by this Court, reported in AIR 1972 Bom 228 [Nagnath Tatya Halge vrs. Kishan Tatya Kale], the issue of res-judicata cannot be decided as preliminary issue. It cannot be disputed that the question of res-judicata is a mixed question of law and fact and unless the material is placed on record to substantiate the said plea and it is proved, the said issue cannot be decided. Hence, no fault can be found with the view taken by the trial Court. 3. Shri Paliwal, the learned counsel for the applicants has relied upon the decision reported in AIR 2004 SC 1373 [M/s. Pearlite Liners Pvt. Ltd., vrs. Manorama Sirsi], particularly para 10, for the proposition that the suit should be dismissed at the very threshold for want of jurisdiction of the Court to grant reliefs prayed for in the suit. The question involved was whether the contract of service can be specifically enforced. It 3 did not involve the disputed question of fact and in this background, the Apex Court has observed that the suit could be dismissed at the very threshold. Hence, the judgment is not applicable to the facts of this case. 4. Shri Paliwal, the learned counsel, also relied upon the judgment of Punjab and Haryana High Court reported in AIR 1984 P&H 47 [Rakha Singh vrs Amrit Lal and others]. It was a case arising out of the final judgment and decree passed by the trial court, wherein the evidence was led. The said judgment is not applicable to the facts of the present case for the reason that the evidence is yet to be led in the present case. This case is only at the stage of filing of written statement. 5. Shri Paliwal, the learned counsel, further relied upon the decision of the Apex Court reported in AIR 2008 SC 2187 [Dadu Dayalu Mahasabha, Jaipur vr. Mahant Ram Niwas and another]. It was a case that the matter was 4 finally decided by the trial court after leading the evidence by the parties. Hence, the said judgment is also not applicable to the facts of the present case. 6. Shri Paliwal. the learned counsel, further relied upon the decision of the Apex Court reported in AIR 2003 SC 3290 [Tirumala Tirupati Devasthanam and another vrs. Thallappaka Anantha Cheryalu and others], more particularly paragraph 23, in which a direction was issued to the Civil Court to frame and decide the preliminary issue as to maintainability of the suit in view of Section 14 of the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, and whether the suit is barred on the principle of res-judicata/estoppel. However, the direction given in the judgment cannot constitute a ratio. Moreover, there was no decision on the preliminary issue including one of the res- judicata/estoppel. Here, in the present case, the suit is at the stage of filing of written statement. The parties are at liberty to move an application under 5 Order 14, Rule 2 of C.P.C. The order is not passed on any such application. Hence, the said judgment is not applicable. 7. In view of above, there is no jurisdictional error committed by the trial Court. The Civil Revision Application is, therefore, dismissed. JUDGE Rvjalit