( 1 ) A short question arises for consideration is that as to whether on a question raised by defendant in suit, that suit is barred by principle of res-judicata and the question should be decided as preliminary issue first, it is obligatory upon the trial court to decide it as preliminary issue first by postponing the settlement of other issues involved in the suit? ( 2 ) THE brief facts of the case are that originally there was only one plot no. 9 at Loni Road Industrial Area, Site 2, Ghaziabad which was allotted to the plaintiffs-respondents in the year 1969, but since the plaintiff did not raise any construction and did not start the industrial unit as such the lease itself was cancelled on 31. 01. 1972. After cancellation of the lease the original plot no. 9 Loni Road Industrial Area, Site 2, Ghaziabad was divided into 2 plots i. e. plot nos. 9 and 9a. The plot no. 9 ad-measuring an area of 15965 sq. yards after division of original plot no. 9 allotted to M/s Hind Forge Private Limited. It is further stated that plaintiff-respondent was required to enter into a compromise in regard to allotment of said plot with U. P. S. I. D. C. under certain terms and in a meeting of Board of Directors of U. P. S. I. D. C. held on 30. 03. 1977 a resolution was passed for such allotment of remaining portion of original plot no. 9 ad-measuring an area of 24399 sq. yards, but the resolution was never given effect to as the plaintiff-respondent declined to take any interest in effectuating the said compromise, thus the resolution dated 30. 03. 1977 became only a dead letter. ( 3 ) IT is stated that after lapse of about 29 years a frivolous writ petition was filed by the plaintiff-respondent before this Court which was numbered as Civil Misc. Writ Petition No. 68650 of 2006. In this writ petition the advertisement dated 08. 11. 2006 was challenged by means of which U. P. S. I. D. C. had advertised for allotment of plot no. 9a, Site 2, Loni Road, Ghaziabad. A further relief was sought for by the plaintiff-respondent in the writ petition that present petitioner/defendant in suit and other respondents of the writ petition be restrained from interfering with the possession of the plaintiff-respondent over plot no. 9a, Site 2, Loni Road, Ghaziabad. A further relief was sought for by the plaintiff-respondent in the writ petition that present petitioner/defendant in suit and other respondents of the writ petition be restrained from interfering with the possession of the plaintiff-respondent over plot no. 9a, Site 2, Loni Road, Ghaziabad. ( 4 ) THE aforesaid writ petition was however, dismissed by the Division Bench of this Court vide judgement and order dated 5. 1. 2007 with finding that the lease of plot no. 9a , Site 2, Loni Road, Ghaziabad in favour of plaintiff-respondent was cancelled on 30. 01. 1972 as the plaintiff-respondent had failed to comply with the terms and conditions of the lease deed and further the compromise dated 30. 03. 1977 was never given effect to. The order dated 05. 01. 2007 passed by this Court in aforesaid writ petition is on the record as Annexure no. 1 to the writ petition. It is further stated that when the plaintiff-respondent did not succeed in the writ petition then on frivolous grounds the suit in question was instituted on 09. 03. 2007 in which the precisely the questions were raised which were earlier raised in the aforesaid writ petition, a copy of the plaint of Original Suit No. 400 of 2007 is on the record as Annexure no.-2 of the writ petition. The defendant-petitioner filed a written statement raising the question of res-judicata alongwith other incidental questions. The copy of same is on record as Annexure no.-3 to the writ petition. It is also stated that petitioner had filed all the relevant documents including copy of Civil Misc. Writ Petition No. 68650 of 2006 and order of Division Bench of this Court dated 05. 01. 2007 passed in the said writ petition. But the trial court has passed the impugned order dated 17. 10. 2008 refusing to decide the question of res-judicata as preliminary issue first on the ground that the issue has already been decided against the petitioner while disposing of application for temporary injunction vide order dated 20. 11. 2007, against the said order F. A. F. O. No. 3390 of 2007 is pending before this court and further the issue shall be decided after taking evidence of the parties, meaning thereby while disposal of suit itself, hence this petition. ( 5 ) HEARD learned counsel for the parties. and perused the records. 11. 2007, against the said order F. A. F. O. No. 3390 of 2007 is pending before this court and further the issue shall be decided after taking evidence of the parties, meaning thereby while disposal of suit itself, hence this petition. ( 5 ) HEARD learned counsel for the parties. and perused the records. ( 6 ) LEARNED counsel for the petitioner has contended that Section 11 of CPC embodies the doctrine of res-judicata and issue of res-judicata being a legal issue has to be decided as preliminary issue first under Order 14 Rule 2 C. P. C. before final adjudication of the suit itself, as the question of res-judicata bars the trial of subsequent suit or issue in subsequent suit which has been decided earlier and also relates to the jurisdiction of court. Whereas learned counsel appearing for the respondents has submitted that in given facts and circumstances of the case the impugned order passed by the court below cannot be held to be faulty so as to call for any interference by this Court. ( 7 ) IN order to appreciate the contention of learned counsel for the petitioner, the relevant portion of the provisions of Section 11 CPC is extracted as under:- " 11, Res-judicata- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation VIII:- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res-judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Explanation VIII:- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res-judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. " ( 8 ) FROM a plain reading of provisions of Section 11 C. P. C. it is clear that a court is prohibited to try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit, between the same parties or between the parties under whom they or any of them claim, litigating under the same title, has been heard and finally decided by a court of competent jurisdiction. ( 9 ) IN Syed Mohd. Salie Labbai Vs. Mohd. Hanifa, AIR 1976 S. C. 1569 it was held that before a plea of res-judicata can be given effect, the conditions mentioned herein after must be proved-- (1) that the litigating parties must be the same, (2) that the subject matter of the suit also must be identical, (3) that the matter must be finally decided between the parties, (4) that the suit must be decided by a court of competent jurisdiction. ( 10 ) IN Smt. Raj Lakshmi Dasi and others Vs. Banamali Sen and others, A. I. R. 1953 S. C. 33, Honble Apex Court has held that the condition regarding the competency of former Court to try subsequent suit is one of the limitations engrafted on the general rule of res-judicata by Section 11 of the Code and has application to suits alone. When a plea of res-judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. The plea of res-judicata on general principles can be successfully taken in respect of judgements of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts etc. . ( 11 ) IN Church of South India Trust Association Vs. The plea of res-judicata on general principles can be successfully taken in respect of judgements of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts etc. . ( 11 ) IN Church of South India Trust Association Vs. Telugu Church Council AIR 1996 SC 987 , it was held that Section 11 (excluding Explanation VIII) envisages that the judgement in a former suit would operate as a res judicata if the Court which decided the said suit was competent to try the same by virtue of its pecuniary jurisdiction and the subject matter to try the subsequent suit and that it is not necessary that the said Court should have had territorial jurisdiction to decide the subsequent suit. ( 12 ) FROM aforesaid legal position, it is clear that the court which has decided former suit or issue, must have had jurisdiction to decide former as well as subsequent suit both, but this rigour of the provisions of Section-11 of the CPC is relaxed by explanation (viii) attached with the said section whereby the applicability of principle of res-judicata is extended to the cases where an issue was heard and finally decided by a court of limited jurisdiction, competent to decide such issue, despite that such court of limited jurisdiction was not competent to try such subsequent suit or suit in which such issue has been subsequently raised. ( 13 ) NOW next question arises for consideration is that as to whether the decision in writ petition operates as res-judicata in a subsequent suit filed on the same cause of action or matter? This question had been directly under consideration before the Honble Apex Court in Union of India Vs. Nanak Singh, AIR 1968 S. C. 1370, wherein it was held that decision on writ petition would operate as res-judicata in a subsequent suit filed on the same matter. In that case, appellant had filed a writ petition challenging the termination of his temporary service on the grounds of infringement of Article 311 of the Constitution and the competence of authority ordering termination. The Single Judge of the Punjab High Court has allowed the writ petition but in appeal before Division Bench the writ petition was dismissed, however, without any observation on the competence of Officer terminating the service of appellant. The Single Judge of the Punjab High Court has allowed the writ petition but in appeal before Division Bench the writ petition was dismissed, however, without any observation on the competence of Officer terminating the service of appellant. Thereafter the appellant filed suit for declaration that his services were terminated by an authority lower in rank than the competent authority and as such he should be deemed to be in service. Honble Apex Court has held that the suit was barred by res-judicata. The pertinent observations made in para 5 of the said decision are extracted as under:- "5. . . . . . . . . . . There is no good reason to preclude, such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. The Court in Gulabchands case, AIR 1965 SC 1153 left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided. " ( 14 ) THE same view has been reiterated by Honble Apex Court again in State of Punjab Vs. Bua Das Kaushal, AIR 1971 S. C. 1676. In G. K. Dudani and others Vs. S. D. Sharma and others, AIR 1986 S. C. 1455 Honble Apex Court has held that the principle of res-judicata is applicable even though Section 11 C. P. C. in terms does not apply to the writ proceedings. The pertinent observation made by Honble Apex Court in para 18 of the decision is as under:- "18. In view of this categorical finding in Chauhans Case, it was not open to the direct recruits to reagitate this point. The pertinent observation made by Honble Apex Court in para 18 of the decision is as under:- "18. In view of this categorical finding in Chauhans Case, it was not open to the direct recruits to reagitate this point. Although by reason of the Explanation which was inserted in Section 141 of the Code of Civil Procedure, 1908, by the Code of Civil Procedure (Amendment) Act, 1976, Section 11 of the Code does not in terms apply to any proceeding under Article 226 of the Constitution, the principle of res judicata does apply to all writ petitions under Article 226. This point was, therefore, barred by the principle of res judicata and should never have been allowed by the High Court to be reagitated. " ( 15 ) EARLIER to the aforesaid decisions in Daryao and others Vs. State of U. P. and others, AIR 1961 S. C. 1457 a Constitution Bench of Honble Apex Court has considered the applicability of principle of res-judicata in proceeding under Article 32 in respect of a decision rendered by High Court under Article 226 of the Constitution of India on same issue. The pertinent observations made by Honble Apex Court in para 19 of the decision are extracted as under:- "19. We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceeding permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the latches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32 If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend up on the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all: but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32. Because in such a case there has been no decision on the merits by the Court. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32. Because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusion thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us. " ( 16 ) IN view of aforestated legal position, it is clear that a decision on writ petition under Article 226 of the Constitution in certain circumstances creates a bar of res-judicata but in certain circumstance as indicated herein before, it does not constitute a bar of res-judicata in subsequent proceeding or suit. However it completely depends upon the nature of the order passed in writ petition. For example if the writ is dismissed on merit after full contest by the parties then in respect of same subject matter, the decision on writ petition would operate as res-judicata in subsequent proceeding or suit in respect of same cause of action or matter but if the writ petition is dismissed on the ground of alternative remedy or delay or latches, it does not constitute a bar of res-judicata in subsequent proceedings or suit filed subsequently in respect of the same matter. However, these instances are merely illustrative in nature and cannot be held to be exhaustive on the point in issue. Therefore, the concerned court has to examine the issue from the aforesaid angle while taking decision on any individual case. ( 17 ) AT this juncture it is also necessary to examine the content and import of Order 14 Rule 2 C. P. C. , which is extracted as under:- "order XIV Rule 2 - Court to pronounce judgment on all issues:- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (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 that issue has been determined, and may deal with the suit in accordance with the decision on that issue. " ( 18 ) FROM a plain reading of Order 14 Rule 2 C. P. C. it is clear that sub-rule (1) of said rule postulates a general principle that inspite of fact that a case may be disposed of on a preliminary issue despite thereof the court is obliged to pronounce judgment on all issues but the aforesaid principle is subject to exception carved out by sub-rule (2) of said rule, which provides that 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 issue of law alone, it may try that issue of law 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 that issue has been determined, and may deal with the suit in accordance with the decision on that issue. Therefore, in my opinion, in order to satisfy the essentials of Order 14 Rule 2 (2) the issue of law must be related either to the jurisdiction of the court or to a bar to the suit created by any law for time being in force and further the court must be of opinion that the case or any part thereof may be disposed on an issue of law only. ( 19 ) THUS the questions which arise for consideration are that as to whether issue of res-judicata is issue of law or not and further as to whether it relates either to the jurisdiction of the court or to a bar to the suit created by any law for time being in force? In order to find out accurate answer to the aforesaid questions, it would be useful to look into the provisions of Order 14 Rule 1 CPC. which deals with the framing of the issues. Order 14 Rule 1 (1) CPC speaks about how the issues arise in case and states that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Sub-rule (2) of Order 14 Rule 1 describes that material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. However, Sub-rule (4) of said Rule further provides that issues are of two kinds: (a) issues of fact, and (b) issues of law. Except the aforesaid kinds of issue, there does not exist any third kind or category of issue like mixed issue of law and fact both, either under the aforesaid provisions of C. P. C, or under any other provision of said Code. Therefore,in my opinion, it is not open for this court to add any other category of the issue by way of interpretation which was not intended to be included in the said Code. ( 20 ) FURTHER it is necessary to point out that every issue of law is based or grounded on certain facts as no legal proposition can be alleged in pleadings in vacuum. Similarly, the principle of res-judicata is such proposition of law which may be pleaded by the defendant in order to constitute his defence, that suit or any issue involved in a suit is barred by the principle of res-judicata. Therefore, merely because the issue of res-judicata requires investigation of facts, in my considered opinion, it cannot be held that issue of res-judicata is mixed issue of law and facts both. It is wrong and mis-conceived notion that the issue of res-judicata is mixed issue of law and fact both. Therefore, merely because the issue of res-judicata requires investigation of facts, in my considered opinion, it cannot be held that issue of res-judicata is mixed issue of law and facts both. It is wrong and mis-conceived notion that the issue of res-judicata is mixed issue of law and fact both. ( 21 ) IT appears that there are certain provisions in the Code and other enactments creating forum for appeal to the higher court against the decision of trial court or lower appellate court or tribunal wherein phrases are commonly used in such manner which may create some doubt or confusion in the mind of courts, such as Section 96 (4) C. P. C. provides that no appeal shall lie except on question of law from a decree in any suit. Section 100 (3) provides that in an appeal under this Section the memorandum of appeal shall precisely state substantial question of law involved in the appeal. Section 109 C. P. C. provides that an appeal shall lie to the Supreme Court from any judgment or decree or final order in a civil proceeding of High Court if the High Court certifies that the case involves a substantial question of law of general importance. The involvement of "question of law" and "substantial question of law" to create ground for appeal to the higher court or forum used under the aforesaid provisions of the Code indicated herein before, in my considered opinion, should not be confused with the expression "issue of law" and issue of fact arise in the suit used under Order 14 Rules 1 and 2 or under other provisions of C. P. C. The question of law or substantial question of law connotes quite different things than that of "issue of fact" and "issue of law" used under Order 14 Rules 1 and 2 or at other places in C. P. C. , therefore, the meaning of aforesaid expressions should be understood in the context in which such expressions are used. In this view of the matter, in my opinion, involvement of mixed question of law and fact both may create a ground of appeal in case statute so provides but mixed issue of law and fact both cannot arise in a suit as held herein before. However, the issue of law and fact both may arise separately and distinctly in a suit. However, the issue of law and fact both may arise separately and distinctly in a suit. ( 22 ) SINCE another essential ingredient for operation of provisions of Order 14 Rule 2 (2) is that the issue of law must relates either to the jurisdiction of court, or to a bar to the suit created by any law for time being in force, therefore, now next question arises for consideration as to whether issue of res-judicata relates to the jurisdiction of court or to a bar to the suit created by any law for the time being in force? In this connection it is necessary to point out that under the provisions of Order 14 Rule 2 (2) C. P. C. where the issue of law relates to the jurisdiction of the court or to a bar to the suit created by law for instituting the claim, the same shall be tried as preliminary issue. Thus the issue of res-judicata must have some material bearing with the jurisdiction of the court to try subsequent suit or issue in a subsequent suit which has been directly and substantially in issue in former suit and has been heard and finally decided by the court having competence to decide such suit or issue. Therefore, in this manner, the issue of res-judicata, in my considered opinion, must relates to the jurisdiction of the court and also create a bar by law for time being in force to try a subsequent suit and thus satisfies the essential ingredients of Order 14 Rule 2 (2) C. P. C. ( 23 ) IN this connection a reference can also be made to a decision of Honble Apex Court rendered in Abdul Rahman Vs. Prasony Bai and another, A. I. R. 2003 S. C. 718 (Pr. 21), wherein it was held that the issue of res-judicata and constructive res-judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. The pertinent observations made in para-21 of the decision are extracted as under: "21. For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res-judicate and/constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues. " ( 24 ) IN view of law laid down by Honble Apex Court and legal position stated herein before, I have no doubt in my mind that the issue of res-judicata should be decided as preliminary issue provided other essential conditions of Order 14 Rule 2 (2), as to whether on a decision upon issue of res-judicata the case or any part thereof may be disposed of finally, is also satisfied. ( 25 ) IN this connection it is necessary to point out that it is upon the concerned court to examine that on decision upon the issue of res-judicata as preliminary issue, the entire case or any part thereof shall be disposed of finally or not. In my opinion, it will depend upon the facts and circumstances of the each individual case and no hard and fast rules can be laid down in this regard. Therefore, it is necessary for the court concerned to examine as to whether while deciding the issue of res-judicata in a particular suit or case the entire case or any part thereof may be disposed of or not and after such assessment if the concerned court form an opinion that entire case or any part thereof may be disposed of by deciding the issue of res-judicata involved in the case concerned, only in that event of the matter the concerned court is under legal obligation to decide the issue of res-judicata as preliminary issue first by postponing the settlement of other issues otherwise it is not under obligation to decide such issue as preliminary issue first but such opinion of the court should be based on objective material on record and should not be based on mere whims. ( 26 ) NOW coming to the facts of the case again I find that trial court has deferred the disposal of the issue of res-judicata and declined to decide the same as preliminary issue first for two reasons. First reason was that the court has already decided the issue of res-judicata while deciding the application for temporary injunction against which FAFO is pending before this Court and another reason was that the issue of res-judicata shall be decided after evidence of the parties which means that the issue shall be decided while disposal of the suit. In my opinion, both the reasons given by the trial court for deferring the disposal of issue of res-judicata are misconceived and erroneous for the reasons that settlement of issues as preliminary issue is a stage in proceeding of the suit whereas disposal of application for temporary injunction is supplemental proceeding different from the proceedings of the suit as described under Section 94 of the Code despite being a proceeding in pending suit. As is clear from the heading of the section itself, that such proceedings are normally resorted to achieve the ends of justice during the pendency of main proceedings of the suit. Therefore, the issue of res-judicata does not necessarily require to be decided by the trial court while disposal of temporary injunction application during the pendency of the suit, which is supplemental proceeding in pending suit, accordingly disposal of issue of res-judicata in the said proceeding, in my opinion, is of no legal consequence. So far as another ground for deferring the disposal of the issue of res-judicata is concerned, I am of the considered opinion that for the reasons given herein before, the view taken by the trial court also appears to be erroneous and misconceived. In my opinion, in given facts and circumstances of the case, the issue of res-judicata was liable to be decided as preliminary issue first by postponing the settlement of other issues involved in the said suit. It is immaterial that while deciding the said issue, the court is required to investigate some facts necessary for its disposal. ( 27 ) IN view of the aforesaid discussion, I am of the considered opinion that the view taken by court below is wholly erroneous and contrary to the view taken by me, therefore, the impugned order dated 17. 10. 2. ( 27 ) IN view of the aforesaid discussion, I am of the considered opinion that the view taken by court below is wholly erroneous and contrary to the view taken by me, therefore, the impugned order dated 17. 10. 2. 008 can not be sustained and the same is hereby quashed. The trial court is directed to consider the case of the petitioner afresh in the light of observations made herein before and decide the issue of res-judicata raised by the petitioner as preliminary issue first and thereafter proceed with the suit accordingly and shall decide the same within a period of six months from the date of production of certified copy of the order passed by this Court. ( 28 ) HOWEVER, the question of res-judicata shall be decided expeditiously preferably within a period of one month from the date of production of certified copy of this order before the court concerned. ( 29 ) WITH the aforesaid observation and direction, writ petition succeeds and allowed to the extent indicated herein before. .