JUDGMENT : The defendants in O.S.No.144 of 2018, on the files of Additional Munsiff Court, Alappuzha, are the petitioners, and the respondent was the plaintiff. The suit was filed seeking a declaration of easement of necessity and for a mandatory injunction to remove the obstruction in item No.3 pathway. 2. The case of the plaintiff is that he is the absolute owner in - possession of 4.85 ares of land which is described as plaint item No.1 property. Item No.2 property is lying on the eastern side of item No.1 property, having an extent of 2.65 ares, which is under the ownership-in-possession of defendants. Plaint item No.3 is a pathway in existence at the southern side of item No.2 in east west direction. When the said pathway was closed by the defendants, the suit was filed. 3. Defendants entered appearance and filed a written statement and also I.A.No.1087 of 2018 for hearing a preliminary issue regarding the maintainability of the suit under Order 14 Rule 2(b) and Section 151 CPC. The preliminary issue raised was, ‘Is the suit barred by any law for the time being in force?’. 4. As per the averments in the affidavit in support of the petition, the suit is barred by Order 23 Rule 3, Order 2 Rule 2 and Section 11 of CPC. It is alleged that the 1 st defendant, along with his wife, had filed O.S. No.605 of 2013 against the plaintiff herein, and the suit was decreed ex parte on 9.4.2014 restraining the defendants by a decree of permanent prohibitory injunction from entering into the plaint schedule property and from committing any waste. The plaint schedule property in that suit is the plaint B schedule in the present suit. Thereafter, the respondent herein filed O.S.No.540 of 2014, claiming a right of prescription over item No.3 property and the said suit was withdrawn by the plaintiff as per order dated 21.11.2017 in I.A.No.4796 of 2017 in O.S.No.540 of 2014. Though liberty was sought for to institute a fresh suit on the same cause of action, liberty was not given. But, it was made clear that a separate suit can be filed with a different cause of action other than the cause of action alleged in the said suit. 5. Though liberty was sought for to institute a fresh suit on the same cause of action, liberty was not given. But, it was made clear that a separate suit can be filed with a different cause of action other than the cause of action alleged in the said suit. 5. The present suit, O.S.No.144 of 2018, is filed on the same cause of action and therefore, the suit is not maintainable in view of Order 23 Rule 3(a). The court below, by Ext.P9, dismissed the maintainability petition. Reasons given by the learned Munsiff for dismissing the same are 3 folded. Firstly, the question of res judicata was argued. The court below took note of the fact that res judicata, being a mixed question of fact and law, evidence is required to enter into such a finding as the parties in O.S.No.605 of 2013 as well as in O.S.No.540 of 2014 differ. Therefore, it was held that res judicata cannot be raised as a preliminary issue. 6. As far as the bar under Order 2 Rule 2 CPC is concerned, since the question pointed out by the defendants that the cause of action for the present suit also occurred during the currency of the previous suit, it is also a matter for evidence as it is a mixed question of law and fact. 7. The 3 rd question regarding the bar under Order 23 Rule 1(3) CPC, whether the cause of action alleged in the present suit is the same as that of the previous suit, can only be decided on the basis of the evidence. 8. The cause of action alleged in the present suit arose on 27.12.2017, the date on which item No.3 was closed down by the defendants. It is true that the reason for withdrawing the earlier suit is the closing of the pathway, but the date on which the said pathway is closed is not clear from the said pleading. So, for that reason, evidence is required. The trial court has only held that the contention regarding the bar of the suit is a mixed question of fact and law, and the same cannot be adjudicated at this stage. The order does not preclude the trial court from raising the bar of the suit under the 3 heads raised by the defendants as issues in the trial. 9. The order does not preclude the trial court from raising the bar of the suit under the 3 heads raised by the defendants as issues in the trial. 9. The counsel appearing for the petitioners had argued that the previous suit was filed as a suit for a simple injunction. Subsequently, the suit was amended, claiming prescriptive right of easement. Later, the suit was sought to be withdrawn with the liberty to file a fresh one, which the court declined. In the petition filed for withdrawing the suit, the averment is that since the pathway is closed, a fresh suit has to be filed claiming easement of necessity. The present suit filed claiming easement of necessity is on the allegation that the pathway has been closed. Therefore, the cause of action in both the suits are one and the same, though a different date is shown in the present suit as date of cause of action. He had called upon this court to adjudicate upon the bar under Order 23 CPC and to hold that the suit is not maintainable. 10. The counsel for the respondent relied on a judgment of the apex court in Sathyanath and another v. Sarojamani [(2022) 7 SCC (Civ.) 644], wherein it was held that if the issue is a question of mixed question of law and fact or issue depends upon the fact, such issue cannot be tried as a preliminary issue. In other words, preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the court or the bar to suit is made out, the court may decide such issues with the sole objective for expeditious decision. It was also held that when a mixed question of law and fact is raised, the issue should await a full-fledged trial, after the evidence is adduced. 11. The apex court in Estralla Rubber v. Dass Estate (P) Ltd. [ (2001) 8 SCC 97 ], held that under Article 227 of the Constitution of India, the High Court is vested with the powers to set aside or ignore the finding of fact of inferior court or Tribunal, if there is no evidence at all. See also Puri Investments v. Young Friends and Co. and others (2022 SCC OnLine SC 283). 12. See also Puri Investments v. Young Friends and Co. and others (2022 SCC OnLine SC 283). 12. The counsel for the respondent, Smt. Parvathy Menon, on the other hand, argued that the court below had not precluded the right of the defendants to contend the bar, which they have raised in the preliminary objection and has only relegated the matter during the trial. So, no prejudice is caused to the petitioners herein. The trial court has given cogent reasons for not entertaining the petition at the preliminary stage and prayed that the Original Petition may be dismissed as the jurisdiction under Article 227 of the Constitution of India, is very limited which has been explained in a catena of decisions of the apex court. 13. The trial court has only relegated the matter regarding the bar of the suit under Section 11, Order 2 Rule 2, as well as Order 23 Rule 1(3) CPC, to be decided after adducing evidence in the trial. A categoric finding is entered that the facts leading to the bar is a mixed question of law and fact, which cannot be entertained at the preliminary stage. When the cause of action shown by the plaintiff is disputed by the defendants, it is definitely a matter of evidence. I have gone through the order of the trial court and I am of the considered opinion that the trial court is fully justified in dismissing the petition. 14. This Original Petition was heard by a learned Single Judge of this court on 12.7.2023, and a judgment was passed. A Review Petition was filed as R.P.No.961 of 2023, which was also dismissed. The judgment in O.P.(C), as well as the order in R.P., were confirmed. 15. The judgment was challenged before the apex court in Civil Appeal No.14162-14163 of 2024. The apex court set aside the judgment and the order in R.P. and directed reconsideration by order dated 21.12.2024. It is thereafter that this Original Petition is heard and disposed of. The counsel for the respondent has brought to the notice of this court that pursuant to the order in R.P., the learned Munsiff, by judgment dated 9.10.2023, struck off the suit from the files and closed it. Therefore, as of now, there is no suit pending as O.S.No. 144 of 2018. The counsel for the respondent has brought to the notice of this court that pursuant to the order in R.P., the learned Munsiff, by judgment dated 9.10.2023, struck off the suit from the files and closed it. Therefore, as of now, there is no suit pending as O.S.No. 144 of 2018. When the hon’ble apex court set aside the judgment passed by this court earlier, as well as order in the Review Petition, necessarily the suit which was struck off, has to be restored to file. Therefore, O.S.No.144 of 2018 is restored to file. The defendants are given liberty to raise all the contentions raised in I.A.No.1087 of 2018 during the trial and the court shall consider the issues, if raised and dispose of the same within a period of 6 months from the date of receipt of a copy of this judgment. This O.P.(C) is disposed of as above.