KBP 5997-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5997 OF 2009 Sukhdev Lala Chikane & ors. ..Petitioners Vs. Manik Lala Chikane & ors. ..Respondents ......... Ms.Surel S.Shah, for petitioner. ......... CORAM : A.S.OKA, J.. DATE : 10 th August, 2009. P.C. : 1] Heard learned counsel for the petitioners. The petitioners in this writ petition under Article 227 of the Constitution of India are the original defendants. An application was made by them at exhibit 73 praying that issue of res-judicata be tried as a preliminary issue. By the impugned order dated 4 th April, 2009, the said application has been rejected by holding that as the plaintiffs have already adduced the evidence on all the issues framed, all the issues will have to be decided together. 2] The learned counsel appearing for the petitioners invited my attention to the observations made in paragraph 6 of the impugned order. It is submitted that the issue of res-judicata has been decided by the trial court. The submission is that issue of res-judicata can be always framed and decided as a preliminary issue. 3] I have carefully considered the submissions. The finding recorded in paragraph 6 of the impugned order cannot be construed as a finding on the issue of res-judicata. All that the trial court has observed therein is that the issue of res-judicata cannot be decided unless the parties adduce the KBP 5997-09.sxw 2 evidence. It is true that under sub-Rule 2 of the Rule 2 of Order 14 of the Code of Civil Procedure, 1908, the issue of res-judicata could have been tried as a preliminary issue. Sub-Rule 2 of Rule 2 of the Order 14 confers discretionary power on the Court to try issues covered by Clause “a” or “b” thereof as preliminary issue. In the present case the trial court has declined to exercise the discretion on the ground that in the suit of year 1996, the plaintiffs have already adduced their evidence. 4] It is not possible to interfere with the impugned order. The trial court has already observed the issue of bar of res-judicata will be decided along with other issues. As stated earlier, by the said order, the said issue has not been decided. Subject to what is observed observed above, the writ petition is rejected. ( A.S.OKA, J. )