IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 WP(C).No. 32 of 2008(D) ----------------------------------- PETITIONER: -------------------- THOMAS FEN, S/O.DEVASSY, PAZHAMADATHIL HOUSE, KUMBALANGHI MURI, KUMBALANGHI VILLAGE, KOCHI TALUK. BY ADV. SRI.DINESH R.SHENOY RESPONDENTS: ------------------------- 1. VINOD @ PARAMESWARAN, S/O.KUNJAN, PANAMBUKATT HOUSE, KUMBALANGHI SOUTH P.O., KUMBALANGHI VILLAGE, KOCHI TALUK. 2. JESSY KUNJUKUNJU, W/O.LATE JOSEPH KUNJUKUNJU, PAZHAMADATHIL HOUSE, PADIVATTOM DESOM, EDAPPALLY VILLAGE, KANAYANNUR TALUK NOW RESIDING AT SREYAS APARTMENT, FLAT NO.4, L.F.C.ROAD, KALOOR - 17. 3. JOSEPH CRESILINE, S/O.JOSEPH KUNJUKUNJU, PAZHAMADATHIL HOUSE, PADIVATTOM DESOM, EDAPPALLY VILLAGE, KANAYANNUR TALUK. 4. ELEZABETH BENNETTE, D/O.JOSEPH KUNJUKUNJU, -DO- -DO- W/O.BENNY NILANARATH, POTTAKUZHI, KALOOR, KOCHI - 682 017. R1 BY ADV. SRI. V.V.SURENDRAN R2 TO R4 BY ADV. SRI.GEORGE JOHNSON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32/2008 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DTD. 26/11/2007 PASSED IN I.A.NO. 2279/2007 IN .S.NO.508/2006, SUB COURT, KOCHI. EXT.P2: COPY OF I.A.NO.3040/2006 IN O.S.NO.508/2006, SUB COURT, KOCHI. EXT.P3: COPY OF I.A.NO.2279/2007 IN O.S.NO.508/2006, SUB COURT, KOCHI. EXT.P4: COPY OF OBJECTION DTD. 20/09/2007 FILED BY THE RESPONDENTS IN I.A.NO.2279/2007 IN O.S.NO.508/2006, SUB COURT, KOCHI. /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 32 OF 2008 = = = = = = = = = = = = = = = Dated this the 26th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Subordinate Judge, Kochi in I.A.2279/07 in O.S.508/06. It was an application for measurement of plaint A and B schedule properties. The Court below disposed of the matter, “Since the rival issues are clearly answered, the present suit is apparently barred by resjudicata.” So the Court has not considered that application on the premises that the principle of resjudicata applies and so this prayer cannot be allowed. But the Court has not considered the case of resjudicata at all in a way in which it deserves to be considered. The learned counsel for the respondents had taken me through the written statement wherein they have clearly reiterated the question of resjudicata. 2. The question of resjudicata may be a mixed question of law and facts and some times it may not be a W.P.C 32 OF 2008 -:2:- pure question of law. Only an issue of law which does not require any evidence to prove it can be treated as a preliminary issue. If the principles contained in Order 14 Rule 2(2) are satisfied and issue of resjudicata is capable of being decided on the basis of undisputed facts emerging from the pleadings it is the duty of the Court to decide the said issue as a preliminary issue. This is a matter which requires consideration by the Court below. Therefore I direct the Court below to consider the question whether the question of resjudicata can be heard as a preliminary issue. If the Court finds that it can be then the Court can answer the same and if it is in favour of the defendants in the suit it is an end of the litigation there but if it is otherwise then the application made by the present petitioner has to be considered. Therefore in order to avoid reopening of the order I permit the writ petitioner herein, in case if it is found that the principles of resjudicata cannot be considered as a preliminary issue or it is not barred by principles of resjudicata, to file a fresh application with the very same W.P.C 32 OF 2008 -:3:- prayer and the Court to consider the same after permitting the other side to file objections. With these observations the writ petition is disposed of. M.N. KRISHNAN, JUDGE. ul/-