Ashok Bhan, J. - (1.) UNDER what circumstances an issue regarding res judicata can be tried as a preliminary issue is a question to be decided in this revision petition.
(2.) PLAINTIFF -respondent (hereinafter referred to as the respondent) was reverted from the post of Chief Manager (Engineering and Projects) to the post of Manager (Engineering and Projects) now redesignated as Manager (Engineering) on 3.12.1990. Aggrieved against his reversion, respondent filed C.W.P. No. 3718 of 1991 challenging the order of reversion dated 3.12.1990, subsequent fixation of his pay vide order dated 27.12.1990 and the resolution of the Board of Directors passed against the respondent vide Agenda Item No. 9.5 dated 16.8.1990. After issuing notice of motion and hearing the parties, this Court dismissed the writ petition by passing the following order: - " Considering the position as clarified in the return, no occasion arrived to grant the relief claimed. 5.9.1991. Dismissed." Defendant -petitioner (hereinafter referred to as the petitioner) filed its written statement in the suit and took a preliminary objection to the effect that since the writ petition for the same cause of action stood dismissed after hearing the parties, the subsequent suit on the same cause of action was barred by the principles of res judicata. Issue No. 3 was to the effect as to whether the suit was barred by the principles of res judicata. Trial Court at the first instance ordered that the issue regarding res judicata be decided as a preliminary issue. Later on by the impugned order, trial Court ordered that issue regarding res judicata be not tried as a preliminary issue and ordered the same to be tried along with the other issues. The reason given is that issue regarding res judicata is a mixed question of law and fact which would require taking of evidence and, therefore, could not be tried as a preliminary issue.
(3.) IN the backdrop of these facts, present revision petition has been filed by the defendant -petitioner challenging the impugned order with a prayer that the issue regarding res judicata be tried as a preliminary issue.;