2025:JHHC:25906 IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 519 of 2025 Manoj Kumar Sao, S/o Late Thambhi Sao, R/o Village-Kharagdiha, P.O. Kharagdiha, P.S. Jamua, District-Giridih ..... .... Petitioner Versus 1. Binod Kumar Sao, S/o Late Thambhi Sao, R/o Village-Kharagdiha, P.O. Kharagdiha, P.S. Jamua, District Giridih 2. Sudama Devi, Widow of late Thambhi Sao, R/o Village-Kharagdiha, P.O. Kharagdiha, P.S. Jamua, District Giridih 3. Mina Devi, Wife of Bishwanath Sao, R/o Village Naya Bazaar, P.O. Lakhisarai, P.S. & District Lakhisarai 4. Anita Devi, Wife of Rajendra Prasad Sao, R/o Village Rajdhanwar, P.O. & P.S. Rajdhanwar, District-Giridih. 5. Sunita Devi, Wife of Shambhu Sao, R/o Village Barakar, P.O. & P.S. Barakar, District-Burdhwan 6. Reeta Devi, Wife of Srilal Sao, R/o Village Karibandh, Jharia, P.O. & P.S. Jharia, District-Dhanbad 7. Jyoti Devi, Wife of Ganesh Prasad Sao, R/o Village Kanduwa, P.O. & P.S. Kendua, District-Dhanbad 8. Sujit Kumar Sao, S/o Late Thambhi Sao, R/o Village-Kharagdiha, P.O. Kharagdiha, P.S. Jamua, District Giridih 9. Umesh Kumar Jalan, S/o Atma Ram Jalan, R/o Bada Chowk Kalimanda Road, I.C.R. Road, P.O. & P.S. Giridih, District-Giridih … …. Opposite Parties CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner : Mr. Lukesh Kumar, Advocate Ms. Aarti Kumari, Advocate Mr. Dhananjay Narayan Deo, Advocate For the Opposite Parties : Mr. Atanu Banerjee, Advocate ------ Order No. 04 / Dated : 27.08.2025. 1. Respondent is the petitioner and the instant civil miscellaneous petition has been filed for setting aside the judgment dated 12.02.2025 passed in Civil Appeal No. 17/2023, whereby and whereunder, the judgment and decree passed by the learned Trial Court in Original Suit No. 1718/2019 has been set aside. 2. Suit of the plaintiffs/ opposite parties was dismissed on the preliminary issue of res-judicata, against which the plaintiffs preferred first appeal under Section 96 of the CPC. In appeal the order passed by the learned Trial Court has been set aside, which is under challenge in the present civil miscellaneous petition. 3. It is submitted that since the dismissal of the suit by the learned Trial Court 2025:JHHC:25906 was on a preliminary issue of res judicata and therefore, the adjudication did not take place, so the judgment passed by the learned trial Court will not come within the meaning of ‘decree’, so as to be amenable to the appellate jurisdiction. The District Judge, therefore, erred to admit the appeal and in passing the final judgment. 4. Having heard the submission, this Court is of the view that any issue which is decided as a preliminary issue will come within the definition of decree under Section 2 (2) of CPC which will be evident from the definition itself which reads as under: “Decree means the formal expression of an adjudication which, so far as regards Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters controversy in the suit and may be either preliminary or final”. 5. Further, in deciding the issue of res judicata the Court conclusively determines that plaintiffs claim cannot be entertained as it has already been adjudicated. Such dismissal is not on a mere technical ground; it involves an adjudicated matter which is barred by law and cannot be re-litigated. Law is settled in this regard by Hon’ble Supreme Court in Sheodan Singh v. Daryao Kunwar, 1966 SCC OnLine SC 98 that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. Dismissal of suit barred by res judicata has not been enumerated in the above list of cases held to be not on merit. 6. In this view of matter, the instant civil miscellaneous petition is disposed of 2025:JHHC:25906 with liberty to the petitioner to pursue available legal remedy. Pending I.A., if any, stands disposed of. (Gautam Kumar Choudhary, J.) Pawan/ -