The High Court dismissed a petition challenging a lower court's disposal of a Section 11 and Section 151 CPC application. The lower court deferred the issue of res judicata to the trial stage as the previous judgment was unreadable.
Disposed of the application under Section 11 and Section 151 CPC to be considered at the stage of trial.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17582 of 2012
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.... .... Petitioner/s
Versus
.... .... Respondent/s
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER
03. 04-10-2012 Heard Mr. Maya Shankar Mishra, learned counsel appearing on behalf of the petitioners.
The petitioners are aggrieved by the order dated 31.07.2012 passed by learned 4th Sub Judge, Bhojpur at Ara in Title Suit No. 650 of 2010, whereby the application filed on behalf of the
Patna High Court CWJC No.17582 of 2012 (3) dt.04-10-2012
2
defendant-petitioners raising objections under Section 11 of the Code of Civil Procedure read with Section 151 thereof, inter alia, on the grounds of the matter already having been adjudicated between the parties in earlier round of litigation, has been disposed of to be considered at the stage of trial.
Perusal of the order impugned manifests that the defendants had relied upon photo copies of the sale deed, a Bakhsisnama, certified copy of the judgment and decree in Title Suit No. 20 1944, the plaint in Title Suit No. 103 of 2003, the written statement filed by the defendants in the said case and the order passed thereon. Learned court below upon examination of the documents has while observing that the decree in Title Suit No. 20 of 1944 was not readable, arrived at a conclusion that the issue required adjudication. It is well settled that an issue of res judicata is a mixed issue of facts and law to be tested and adjudicated on the basis of evidence adduced by the parties in support of their contentions, during the course of trial. The opinion thus formed by the trial court, cannot be faulted. This application is accordingly disposed of.
S.Sb/-
(Jyoti Saran, J)
1 issue framed by the court
Whether the application for exclusion of evidence under Section 11 CPC read with Section 151 CPC should be considered now or at the stage of trial.
2 provisions across 1 enactments
Ramjee Upadhyay and others
Ravi Nandan Upadhyay and others
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
