Case Note & Summary
The petitioner, Kisanrao Kulkarni, was a defendant in a civil suit (RCS No.79/2008) filed by the respondent/plaintiff for declaration of ownership and perpetual injunction over a portion of land. The petitioner filed a written statement denying the claim and averred that an earlier litigation between the parties operated as res judicata under Section 11 CPC. The petitioner then filed an application purportedly under Section 9-A CPC for framing the issue of res judicata as a preliminary issue regarding jurisdiction. The trial court rejected the application. Aggrieved, the petitioner filed the present writ petition. The High Court examined the scope of Section 9-A CPC, which allows the court to frame and decide issues of jurisdiction as preliminary issues. The court held that res judicata is not an issue of jurisdiction but a bar to the trial of a suit. Therefore, an application under Section 9-A CPC for framing an issue of res judicata as a preliminary issue is not maintainable. The court dismissed the writ petition, upholding the trial court's order.
Headnote
A) Civil Procedure - Res Judicata - Section 9-A CPC - Preliminary Issue - The petitioner filed an application under Section 9-A CPC seeking framing of issue of res judicata as a preliminary issue regarding jurisdiction. The trial court rejected the application. The High Court held that Section 9-A CPC applies only to issues of jurisdiction and not to issues of res judicata. Res judicata is a bar to trial but does not pertain to jurisdiction. Therefore, the application under Section 9-A CPC was not maintainable. (Paras 1-3)
Issue of Consideration
Whether an application under Section 9-A of the Code of Civil Procedure, 1908 (CPC) is maintainable for framing an issue of res judicata as a preliminary issue regarding jurisdiction.
Final Decision
The High Court dismissed the writ petition, holding that the application under Section 9-A CPC was not maintainable as res judicata is not an issue of jurisdiction.
Law Points
- Section 9-A CPC applies only to issues of jurisdiction
- not to issues of res judicata
- res judicata is a bar to trial but not a jurisdictional issue
- application under Section 9-A CPC for framing issue of res judicata as preliminary issue is not maintainable
