SONU KESSU GAWADE Vs. MURARI TARU GAUDE

JUDGEMENT

(1.) HEARD Shri J. P. Mulgaonkar, learned Counsel appearing for the appellants and Shri R. Ramani, learned Counsel appearing for the respondents. The above appeal challenges the judgment and order passed by the Lower Appellate Court whereby the appeal preferred by the respondents was partly allowed and the matter was remanded to the Trial Judge to decide Regular Civil Suit No. 106/98 afresh in the light of the observations made in the impugned judgment.

(2.) SHRI Mulgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that though the learned counsel does not dispute that the respondents have been permitted to produce the earlier judgments and an additional issue is framed as to whether the suit filed by the appellants was barred by res -judicata nevertheless the learned Counsel has submitted that the learned Judge ought to have exercised its jurisdiction only under Order 41 Rule of C.P.C and not set aside the judgment passed by the Trial Judge. The learned counsel further pointed out that without considering the correctness or otherwise of the findings arrived at by the learned Trial Judge, it was not incumbent upon the learned Judge to set aside the impugned judgment and direct the learned Trial Judge to decide the suit a fresh. The learned Counsel further pointed out that by such exercise, grave prejudice has occasioned to the appellants as the decree passed in their favour came to be set aside. The learned Counsel as such submitted that the impugned judgment passed by the Court below is in excess of jurisdiction and as such the same deserves to be quashed and set aside.

(3.) UPON hearing the learned Counsels and on perusal of the records, it is not in dispute that during the pendency of the suit an application was filed by the respondents under Order 41 Rule of C.P.C. whereby the judgments passed in the earlier proceedings were allowed to be produced. It is also to be noted that in view of the said documents an additional issue has been framed as to whether the proceedings filed by the appellants are barred by the principles of res -judicata. Consequently, considering that issue of res -judicata is a mixed question of law and fact, the learned Judge has rightly remanded the matter for deciding the suit afresh.