JUDGMENT 1. - The instant appeal is filed against the judgment and decree, dated 28.11.90, passed by Additional District Judge No. 1, Jaipur City Jaipur in Civil Appeal No. 10/89, whereby, the learned ADJ No. 1 Jaipur City, Jaipur affirmed the judgment and decree dated 25.4.89, passed by the Additional Civil Judge No. 3. Jaipur City, Jaipur in Civil Suit No. 55/86. 2. The plaintiff-appellant filed the present suit for permanent injunction and declaration, in the court of Munsif and Judicial Magistrate (West), Jaipur City. Jaipur, making averments in his plaint that he was having a Thadi, bearing No. 21 near Kotwali, Kishanpole Bazar, Jaipur. It is averred in the plaint that the Thadi was allotted to the plaintiff-appellant and he was carrying on his business on the aforesaid Thadi and was regularly paling rent to the Municipal Council, Jaipur. It is averred in the plaint that the plaintiff-appellant was a member of Purusharthi Thadi Holder's Union (Regd.) Jaipur. But at the time of emergency in the year 1975, all the Thadis were removed and they were replaced at Indira Market, Jaipur. It is averred that in this regard the plaintiff-appellant deposited Rs. 3,500/- with the respondent No. 3 and got a receipt of the same. It was mentioned in the plaint that the respondent No. 3 in collusion with respondent No. 4, removed the original record of the Union, just to declare the respondent No. 4 as the owner of the said Thadi with the intention of allotment of a shop at Indira Market, Jaipur in favour of respondent No. 4. It is averred that a false document was also prepared in collusion with the respondent Nos. 3 and 4. The respondent No. 4 with intention to cheat the plaintiff-appellant filed a civil suit before the court of Additional Munsif and Judicial Magistrate No. 4, Jaipur City, Jaipur against him. It is averred in the plaint that defendant-respondent No. 4 dishonestly obtained a decree, on basis of a forged document, from the learned trial Court, in the previous suit on 18.6.75, against which the plaintiff- appellant filed an appeal which, too was dismissed on 29.10.85. 3. After service of summons the defendant-respondents filed written statement. An application was moved by the contesting respondent No. 4 before the trial Court that the instant suit was barred by principle of res judicata. 4. 3. After service of summons the defendant-respondents filed written statement. An application was moved by the contesting respondent No. 4 before the trial Court that the instant suit was barred by principle of res judicata. 4. On the basis of the pleadings of the parties, the learned trial Court framed Issue No. 3, relating to applicability of principle of res judicata, to the facts and circumstances of the present suit which was treated to be a preliminary issue. The learned trial Court, on basis of the judgment and decree, passed in the previous suit and affirmance of the said judgment and decree by first appellate court arrived at the conclusion that the present suit is barred by principle of res judicata. The learned court critically examined issue No. 1 framed in the previously instituted suit, from which, it is deduced that the question, involved in the present suit was directly and substantially involved in the previous suit, between the parties relating to same subject-matter of the dispute. After analytical discussion, the learned trial Court arrived at a conclusion that Issue No. 1, decided between the parties relating to same subject-matter will operate res judicata in the present suit. 5. On the basis of the aforesaid finding, the learned trial Court dismissed the suit filed by the plaintiff-appellant, on 25.4.89, against which the plaintiff-appellant preferred an appeal before the first appellate court. The learned first appellate court meticulously re-assessed the testimonial value of the evidence adduced by the parties and critically examined the judgment passed by the learned trial Court. It is held by the learned first appellate court that the controversy about the same subject- matter, involved in the present suit, was directly and substantially involved in the previously instituted suit, between the parties. It is further held by the learned first appellate court that the decision rendered by the learned first appellate court on 29.10.85, has attained finality between the parties on the basis of the aforesaid findings, the learned first appellate court arrived at a conclusion that the present suit is barred by principle of res judicata as contemplated under Section 11 of the Civil Procedure Code (CPC). 6. 6. Sri Lokesh Sharma, appearing on behalf of the plaintiff-appellant, urged before me that the earlier decree, passed between the parties about the same subject-matter in previously instituted suit was obtained by playing fraud and collusion by respondent No. 4 therefore, it would not operate as res judicata, as envisaged under Section 44 of the Indian Evidence Act. 7. For better and deeper understanding of the aforesaid point, raised by the learned counsel for plaintiff-appellant Shri Lokesh Sharma, it would be proper and expedient to re-produce Section 44 of the Evidence Act for ready reference which reads thus:- "Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42, and which have been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion." 8. The aforesaid plea was raised before the learned trial court as well as before the appellate court, although, the aforesaid Section 44 of Evidence Act was not brought to the notice of the courts below. Both the courts below, after giving cogent and convincing reasons arrived at a conclusion that the earlier judgments passed by learned trial Court and learned first appellate court, in previously instituted suit were passed by competent courts of civil jurisdiction. Both the courts below have arrived at concurrent finding of fact to the effect that the plaintiff-appellant has failed to establish that the earlier judgments passed by both the courts below in previously instituted suit were either obtained by fraud or collusion. 9. Thus, the plea raised in present appeal was also raised by the plaintiff-appellant before the learned trial Court as well as before the learned first appellate court to the effect that the contesting respondent No. 4, Tolaram has obtained the earlier decree by playing fraud and collusion. The aforesaid plea of playing fraud and collusion in obtaining the decree in previously instituted suit is negatived by both the courts below after analytical discussion of the evidence adduced by the parties with which, I am at one. 10. The learned counsel appearing on behalf of the respondent No. 4, Shri J.P. Goyal, supported the judgments passed by the learned courts below. 10. The learned counsel appearing on behalf of the respondent No. 4, Shri J.P. Goyal, supported the judgments passed by the learned courts below. It is urged by the learned counsel appearing on behalf of respondent No. 4 that the substantial questions of law, formulated in the present appeal on 30.8.91, are not involved in the present case. It is urged by the learned counsel for the respondents that the instant second appeal is concluded by concurrent findings of fact and it is liable to be dismissed. 11. I am of the view that there is substance in the argument of the learned counsel for respondents, yet, it would be proper to discuss these substantial questions of law, in brief. There substantial questions of law formulated by this Court, on 30.8.91, are interrelated, therefore, I would like to deal these questions together. 12. As regards question Nos. 1 and 2, formulated by this Court to the effect, whether respondent Nos. 1 to 3 were bound with the judgment and decree passed in Civil Suit No. 48/80, when they were not made part y in that suit, and in these circumstances, whether the principle of res judicata is applicable and can be decided without recording evidence. Suffice it to say that by filing the present suit, the plaintiff-appellant alone is opposing the execution of the earlier decree obtained by respondent No. 4 in previously instituted suit and not the respondent Nos. 1, 2 and 3. Issue No. 1 was decided between the plaintiff-appellant and the defendant-respondent No. 4, on the basis of evidence adduced by them, relating to their entitlement of Thadi No. 21, in previously instituted suit, which attained finality between them, therefore, findings recorded on issue No. 1, between them, will certainly operative as res judicata between them. It is true that the decree in Civil Suit No. 48/80, is not binding on the defendant-respondent Nos. 1, 2 and 3, but it would not make any difference, since the right, title and interest of the plaintiff- appellant and the defendant-respondent No. 4 were directly and substantially involved in the previously instituted suit relating to same subject-matter, for which the present suit has been filed. The decree passed by the learned trial Court on 11.2.82, had merged in the decree passed by the lower appellate court on 29.10.95, which has attained finality. The decree passed by the learned trial Court on 11.2.82, had merged in the decree passed by the lower appellate court on 29.10.95, which has attained finality. The principle of res judicata is based on public policy, debarring a person to re-agitate the same point by filing a subsequent suit relating to same subject-matter, which has already been decided between them. 13. As regards question No. 1 to the effect, whether issue of res judicata can be decided as preliminary issue or it should be decided along with other issues, it is well to remember that a question relating to res judicata can be of two kinds; one kind can be said to be based on mixed questions of law and fact. In aforesaid types of cases, where res judicata is involved, the plea relating to res judicata should be decided along with other issues, after recording evidence, but in those cases where the issue is found to be apparently, directly and substantially involved in a previously instituted suit between the parties about the same subject-matter, then, courts of law are required to take note of Section 40 of the Evidence Act and should decline to take cognizance of subsequent suit. In such situations, it is to be decided as a preliminary issue. No hard and fast rule can be formulated on this part but such question will depend on facts of each case. 14. In the present case, the question of res judicata between the parties relating to same subject-matter as directly and substantially involved in previously instituted suit between the plaintiff-appellant and defendant-respondent No. 4 and both the courts below have committed no error in deciding Issue No. 3 as the preliminary issue. 15. There is yet another reason to arrive at the aforesaid conclusion. The amended order 14, sub-rule (2) of Rule 2, inserted by Act No. 104 of 1976, enforced with effect from 1.2.1977, provides that where issue both of law and fact arise in the same suit and the court is of opinion that the case or any part thereof may be disposed of an issue of law only, it may try that issue first, if that issue relates to jurisdiction of the court, or a bar to the suit, created by any law for the time being in force. The amended Order 14 of Civil Procedure Code mandates the civil courts, to decide all issues together subject to the provisions of sub-rule (2) of Rule 2ORDER14 of Civil Procedure Code, which reads thus:- "(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to:- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after the issue has been determined and may deal with the suit in accordance with the decision on that issue." 16. Looking into the aforesaid provisions contained under sub-rule (2) of Rule 2ORDER14 of CPC, I am satisfied that the learned trial Court, in exercise of its power under sub-rule (2) of Rule 2 of the aforesaid Order, has rightly decided issue No. 3, treating it to be the preliminary issue, which falls within the ambit of the provisions of sub-rule (2) of Rule-2 of Order 14 of CPC, and an argument, contrary to it, is not acceptable and it is hereby repelled. 17. In view of the aforesaid discussion, the substantial question Nos. 1, 2 and 3, mentioned hereinabove, are answered accordingly. In my considered opinion, the instant second appeal is concluded by concurrent finding of fact and the learned counsel appearing on behalf of the respondents, has successfully demonstrated before this Court that the substantial questions of law, formulated on 30.8.91, by this Court, are not involved in the present second appeal.As a result of the aforementioned discussion, the instant second appeal lacks merits and it is hereby dismissed, with costs, assessed to Rs. 2,000/-. Appeal dismissed. *******