Prakash Shrivastava, J. - (1.)By this writ petition under Article 227 of the Constitution of India the defendants have challenged the order of trial court dated 13/2/2017 whereby the issue of res judicata has been decided as preliminary issue.
(2.)The respondent/plaintiff had filed the suit for declaration and injunction with the plea that sale deed in his favour was executed prior in point of time and he has right to use the suit property whereas the plea of petitioners in their written statement is that respondent has no such right. They had also raised the plea that the issue has been concluded by earlier judgment in CS No. 13A/96. Nainsingh Vs. Ramchandra. On the basis of this trial court had framed the issue as to whether there is bar of res judicata in the suit and this issue has been decided as preliminary issue by the impugned order.
(3.)Having heard the learned counsel for parties and on perusal of the record it is noticed that trial court has decided the aforesaid issue without permitting the parties to lead evidence. Trial court while deciding it has examined the pleadings, issues, judgments etc of the earlier suit being CS No. 13A/96, whereas these documents were not proved in the evidence.