Dismissed¶25

Sanjay Kumar Singh @ Sanjay Singh @ sanjay Kumar v. Manoj Singh

Patna HC11 Apr 2025C.Misc./981/2023

Case brief

AI extract

What is this about?

res judicata preliminary issue; res subjudice; mixed question of law and fact; Order 14 Rule 2 CPC; Section 11 CPC; Code of Civil Procedure; Title Suit No. 420 of 2022 Sitamarhi; Partition Suit No. 44 of 1960; Second Appeal No. 277 of 2002 Patna High Court; Sathyanath v. Sarojamani Civil Appeal No. 3680 of 2022; rejection of application under Order 14 Rule 2; C.Misc. No. 981 of 2023; Patna High Court 2025; Arun Kumar Jha, J.

What did the court decide?

It is the clear position of law that a mixed question of law and fact cannot be tried as a preliminary issue. ¶22

Sanjay Kumar Singh @ Sanjay Singh @ sanjay Kumar Vs Manoj Singh — Patna HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶25

Issue for consideration

Whether Title Suit No. 420 of 2022 is hit by the principle of res judicata and whether that plea can be framed as a preliminary issue. +1 more

¶16

Court's answer

It is the clear position of law that a mixed question of law and fact cannot be tried as a preliminary issue.

¶22

Ratio / Principle

Res judicata being a mixed question of facts and law, in the given facts and circumstances it cannot be decided as a preliminary issue.

¶22

Key takeaways

Where appreciation of fact is required, the applicability of Order 14 Rule 2 of the Code of Civil Procedure becomes restricted: only issues of law can be framed as preliminary issues, and no other issue touching upon questions of fact and law, or facts alone, can be a preliminary issue.ratio¶24
No infirmity is found in the impugned order rejecting the application, and the impugned order is affirmed.ratio¶24

Detailed headnote1 paragraphs

Patna High Court (Arun Kumar Jha, J), disposing of the petition at admission stage, dismissed Civil Miscellaneous (C.Misc.) No. 981 of 2023 and affirmed the order dated 01.08.2023 of Sub Judge-VI, Sitamarhi in Title Suit No. 420 of 2022, by which defendant no.1/petitioner's application dated 17.10.2022 seeking framing of res judicata as a preliminary issue was rejected. Held: a mixed question of law and fact cannot be tried as a preliminary issue; res judicata being a mixed question of facts and law, on the given facts it cannot be decided as a preliminary issue; and where appreciation of fact is required, the applicability of Order 14 Rule 2 of the Code of Civil Procedure becomes restricted, permitting only issues of law to be framed as preliminary issues. Counsel for respondent no.1 referred to Sathyanath & Anr. Vs. Sarojamani, Civil Appeal No. 3680 of 2022 (Supreme Court), to the same effect. Background facts noted: Partition Suit No. 44 of 1960 (decreed, then set aside in first appeal) is subject to pending Second Appeal No. 277 of 2002 in this Court; counsel fairly conceded that on pendency the plea would be of res subjudice rather than res judicata.

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.981 of 2023

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======================================================

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Sanjay Kumar Singh @ Sanjay Singh @ sanjay Kumar Son of Late Maheshwar Singh Resident of Village-Morsand, Police Station- Runisaidpur, District-Sitamarhi.

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... ... Petitioner/s

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Versus

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Manoj Singh Son of Late Dinesh Singh Resident of Village-Morsand, Police Station-Runisaidpur, District-Sitamarhi.

¶7

Ranjana Kumari Daughter of Late Maheshwar Singh, Wife of Tappu Thakur, Resident of Village-Basua, Police Station-Aurai, District-Muzaffarpur

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Soni Kumari Daughter of Late Maheshwar Singh, Wife of Lakshman Thakur Resident of Village-Ganguli, Police Station-Aurai, District-Muzaffarpur

¶9

... ... Respondent/s

¶10

====================================================== Appearance : For the Petitioner/s : Md. Waliur Rahman, Advocate Mr.Pushpendra Kumar Singh, Advocate For the Respondent/s : Mr.Ratan Kumar Sinha, Advocate Mr. V.R.P. Singh, Advocae

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====================================================== CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT Date : 11-04-2025

¶12

Heard learned counsel for the parties and I intend to dispose of the petition at the stage of admission itself.

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The petitioner is aggrieved by the order dated 01.08.2023 passed by learned Sub Judge-VI, Sitamarhi in Title Suit No. 420 of 2022, whereby and whereunder application dated 17.10.2022 filed on behalf of defendant no.1/petitioner herein has been rejected.

¶14

Learned counsel for the petitioner submits that the petitioner filed an application before the learned trial court on

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Patna High Court C.Misc. No.981 of 2023 dt.11-04-2025 2/5

¶16

17.10.2022 that the Title Suit No. 420 of 2022 is hit by the principle of res judicata and therefore, a preliminary issue be framed on this point. But the learned trial court in a mechanical manner rejected the application of defendant no.1/petitioner. The learned trial court failed to appreciate that though generally res judicata is a mixed question of facts and law but in approptriae case this could be determined as preliminary issue. Learned trial court did not consider the provisions of Order 14 Rule 2 of the Code of Civil Procedure in is true perspective. Learned trial court has not given the proper reasons for rejecting the application of the petitioner and dismissed the petition mentioning in one line that the res judicata is mixed question of facts and law. Learned counsel further submits that the learned trial court failed to appreciate that earlier Partition Suit No. 44 of 1960 was filed by the grandfather of the defendant against one Mangal Dayal Singh and 16 others and one Ram Jogan Singh was defendant no. 7 and plaintiff of this case is grandson of Ram Jogan Singh. The said suit was filed for partition of Schedule I of the suit property to the extent of 1/3rd share. The suit property included the suit property of Title Suit No. 420 of 2022 but this fact was not taken note by the learned trial court. Partition Suit No. 44 of 1960 was decreed and the first appellate

¶17

Patna High Court C.Misc. No.981 of 2023 dt.11-04-2025 3/5

¶18

court set aside the judgment passed in the said partition suit and the plaintiff of the suit approached this Court in Second Appeal No. 277 of 2002. The said second appeal is still pending. In these circumstances, there has been no decision in Partition Suit No. 44 of 1960, if pendency of second appeal is taken into consideration and learned counsel very fairly submits that if pendency is considered then the present Title Suit No. 420 of 2022 would be hit by principles of res subjudice . In any case as the share of the parties have already been decided by the decree of the learned trial court, the matter should have attained finality. Thus, learned counsel submits that the impugned order is not sustainable.

¶19

Learned counsel appearing on behalf of respondent no. 1 submits that there is no infirmity in the impugned order and the learned trial court has considered the law in its true perspective as law is settled that if the issue of res judicata is raised, the same could not be decided only on the point of law as the facts are required to be appreciated to consider whether the subsequent suit is hit by the principle of res judicata and for this the conditions prescribed in Section 11 of the Code of Civil Procedure is required to be considered. Learned counsel referred to a decision of Hon’ble Supreme

¶20

Patna High Court C.Misc. No.981 of 2023 dt.11-04-2025 4/5

¶21

Court in the case of Sathyanath & Anr. Vs. Sarojamani passed in Civil Appeal No. 3680 of 2022 in support of his contention that in cases where issues, both of law and of fact, arise in the same suit and the court is opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, if it relates to jurisdiction of the Court or a bar to the suit created by law for the time being in force. But the code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon deicision of fact, it cannot be tried as a preliminary issue. Now, res judicata is a mixed question of law and facts and the same cannot be decided as a preliminary issue. Thus, learned counsel submits that there is no infirmity in the impugned order and the same may be affirmed.

¶22

I have given my thoughtful consideration to the rival submission of the parties and perused the record. In the present case, apart from the clear position of law that mixed question of law and fact cannot be tried as preliminary issue and res judicata being mixed question of facts and law in the given facts and circumstances, the same cannot be decided as a preliminary issue. Further when appreciation of fact is required,

¶23

Patna High Court C.Misc. No.981 of 2023 dt.11-04-2025 5/5

¶24

the applicability of Order 14 Rule 2 of the Code of Civil Procedure becomes restricted as it provides that only issue on law could be framed as preliminary issue and no other issue touching upon the questions of facts as well as law or facts alone could be a preliminary issue. For this reason, I do not find any infirmity in the impugned order and the same is affirmed.

¶25

Accordingly, the present petition stands dismissed.

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(Arun Kumar Jha, J)

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DKS/-

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	21.04.2025
Transmission Date	NA

Sanjay Kumar Singh @ Sanjay Singh @ sanjay Kumar v. Manoj Singh

Case brief

What is this about?

What did the court decide?

Sanjay Kumar Singh @ Sanjay Singh @ sanjay Kumar v. Manoj Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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