S. P. MEHROTRA, J. ( 1 ) THIS writ petition has been filed by Smt. Tara Devi, Balram Prasad Tripathi, Krishna Jiwan Tripathi and Arjun Prasad Tripathi as petitioners Nos. 1, 2, 3 and 4, inter alia, praying for issuance of a writ, order or direction in the nature of certiorari quashing the order 14-10-1980 (Annexure No. 5 to the writ petition) passed by learned Munsif Khilalabad. Basti (respondent No. 2) and the order dated 12-11-1980 (Annexure No. 6 to the writ petition) passed by the learned District Judge, Basti (respondent No. 1 to the writ petition. ( 2 ) DURING the pendency of the writ petition, Smt. Tara Devi (petitioner No. 1) died, and in her place. Balram Prasad Tripathi (petitioner No. 2), Krishnajiwan Tripathi (petitioner No. 3) and Arjun Prasad Tripathi (petitioner No. 4) who were already on record, were substituted as the heirs and legal representatives of Smt. Tara Devi. The said Balram Prasad Tripathi, Krishnajiwan Tripathi and Arjun Prasad Tripathi are hereinafter referred to "as the petitioners". ( 3 ) THE facts relevant for deciding the controversy involved in the writ petition are follows :- it appears that certain properties belonged to one Ramdas Shukla, who was maternal grand father of the petitioner. It is alleged by the petitioners that after the death of Ramdas Shukla, property devolved upon Smt. Yosoda Devi (daughter in law of the said Ramdas Shukla), who was given a right for her life alone. It is alleged that the said Smt. Yosoda Devi started transacting to transfer the said property, therefore, a suit was filed by the said Smt. Tara Devi and other petitioners for injunction wherein Smt. Yosoda Devi was impleaded as defendant No. 1. It is further alleged that in the meantime, Hari Nam Das Vedandi, respondent No. 3 (defendant No. 2 in the said suit) got a Sarvakari executed in his favour by the said Smt. Yosoda Devi (defendant No. 1) who is now dead. It is further alleged that in the meantime, Hari Nam Das Vedandi, respondent No. 3 (defendant No. 2 in the said suit) got a Sarvakari executed in his favour by the said Smt. Yosoda Devi (defendant No. 1) who is now dead. ( 4 ) IT is further alleged in the writ petition that an application No. 5c was moved by the said Smt. Tara Devi and other petitioners to get an interim injunction which was allowed by the learned Civil Judge by his order dated 1-6-1977 whereby Smt. Yosoda Devi was directed not to transfer the land and the respondent No. 3 was directed not to get his name mutated on the basis of Sarvarkari. ( 5 ) IT is further alleged in the writ petition that on 15-12-1977 parties were directed to appear in person on 22-3-1978. Copy of the order dated 15-12-1977 has not been brought on record of this writ petition by the petitioners. ( 6 ) IT appears that thereafter by order dated 20-4-1978, the learned Civil Judge fixed 21-7-1978 for issues and parties personal appearance. ( 7 ) AGAIN, on 21-7-1978 the date was fixed as 23-10-1978. ( 8 ) ON 23-10-1978 the learned Civil Judge passed order fixing 22-1-1979 for issues and parties appearance. ( 9 ) ON 22-1-1979 an application No. 54d was moved by respondent No. 3 (defendant No. 2) in the suit) for adjournment on the ground that he could not appear due to urgent work. The said application was allowed by the learned Civil Judge by his order dated 22-1-1979 on payment of Rs. 40/- as costs, and 20-4-1979 was fixed for issues and parties personal appearance. ( 10 ) ON 20-4-1979 the case could not be taken up, and the next date fixed was 25-7-1979 for issues and parties appearance. ( 11 ) COPIES of the aforesaid orders dated 20-4-1978, 21-7-1978, 23-10-1978, 22-1-1979 and 20-4-1979 have been filed as Annexure No. 7 to the writ petition. ( 12 ) ON 25-7-1979, an Application No. 55-C was moved by respondent No. 3 (defendant No. 2 in the suit) on the ground that the statement under Order X, Rule 2, Code of Civil Procedure of the respondent No. 3 (defendant No. 2 in the suit) should be recorded through his pairokar who was acquainted with the facts of the case. This application was opposed by the said Smt. Tara Devi and the petitioners. The learned Civil Judge by his order dated 25-7-1979 held that the said application No. 55-C was not maintainable, and, therefore rejected. ( 13 ) THEREUPON on the same day, i. e. 25-7-1979, Application No. 56d was filed by respondent No. 3 (defendant No. 2 in the suit) that he should be given some time to appear in the Court. On the said application No. 56d, the learned Civil Judge passed order dated 25-7-1979 fixing 5-10-1979 for issues and parties personal appearance on payment of Rs. 45/- as costs. Copy of the order dated 25-7-1979 passed on the application No. 55c and application No. 56d has been filed as Annexure No. 1 to the writ petition. ( 14 ) ON 5-10-1979, the case could not be taken up, and therefore, 3-12-1979 was fixed for issues and parties personal appearance copy of the said order dated 5-10-1979 has been filed as Annexure No. 2 to the writ petition. ( 15 ) ON 3-12-1979, an application No. 57d was filed by respondent No. 3 (defendant No. 2 in the suit) to produce defendant in person. The learned Civil Judge passed an order dated 3-12-1979 on the said application No. 57d whereby the case was adjourned to 10-1-1980 on payment of Rs. 60/- as costs. It was also observed that this was the last chance. Copy of the order dated 3-12-1979 has been filed as Annexure No. 3 to the writ petition. ( 16 ) IT appears that by order 17-5-1980, passed by the learned District Judge the said suit was transferred to the Court of Munsif Khalilabad. ( 17 ) ON 2-9-1980 the case was taken up before the learned Munsif Khalilabad. An Application No. 58ga was moved by respondent No. 3 (defendant No. 2 in the suit) praying for exemption from personal appearance and for recording the statement of Mukhar-E-am. The learned Munsif by his order dated 2-9-1980 rejected the said application No. 58ga and fixed 6-10-1980 for recording the statement under Order X, Rule 2, Code of Civil Procedure. It was observed that the parties should appear in person otherwise action would be taken accordingly. Copy of the said order dated 2-9-1980 is annexed as Annexure No. 4 to the writ petition. It was observed that the parties should appear in person otherwise action would be taken accordingly. Copy of the said order dated 2-9-1980 is annexed as Annexure No. 4 to the writ petition. ( 18 ) THEREAFTER, it appears that the respondent No. 3 (defendant No. 2 in the suit) moved an Application No. 57ga, inter alia, stating that he had given power of attorney of executing, Mukhatar-nama favour of Brij Bihari Das, who was performing various functions with regard to the property, and that the statement of the said Brij Bihari Das be recorded and the respondent No. 3 be exempted from personal appearance. It further appears that Brij Kishore Das, Mukhatar-e-am also filed an Application No. 60ga, inter alia, stating that he was acquainted with the facts of the case, and his statement under Order X, Rule 2, Code of Civil Procedure be recorded. An affidavit was also filed in support of the said application No. 60ga. The said Smt. Tara Devi and other petitioners (plaintiffs in the suit) filed their Objection No. 59ga, inter alia, alleging that Hari Nam Das, respondent No. 3 (defendant No. 2 in the suit) had told the plaintiffs that he (Hari Nam Das Vedanti) was himself not contesting the said suit, and Brij Kishore Das and Sant Das had filed the written statement making wrong allegations and they were contesting the said suit, and that this was the reason why Hari Nam Das Vedanti was not appearing in the Court despite repeated orders. ( 19 ) THE learned Munsif Khalilabad considered the said applications 57ga and 60ga and the objections No. 59ga, and passed order dated 14-10-1980. Copy whereof is annexed as annexure No. 5 to the writ petition. It appears from the said order dated 14-10-1980 that the learned Munsif, Khalilabad considered it necessary that for disposal of the said applications, the statement of Birj Kishore Das, Mukhtar of respondent No. 3 be recorded, and accordingly the statement of Brij Kishore Das was recorded. Thereafter, the said applications and the said objections were disposed of by the said order dated 14-10-1980. It was, inter alia held that considering the circumstances of the case, it did not appear necessary to insist upon the personal appearance of respondent No. 3 (defendant No. 2 in the said suit ). Thereafter, the said applications and the said objections were disposed of by the said order dated 14-10-1980. It was, inter alia held that considering the circumstances of the case, it did not appear necessary to insist upon the personal appearance of respondent No. 3 (defendant No. 2 in the said suit ). It was also observed that the legal requirement was fulfilled by the statement of the said Brij Kishore Das. ( 20 ) AGAINST the said order dated 14-10-1980 passed by the learned Munsif Khalilabad (respondent No. 2) Smt. Tara Devi and petitioners (plaintiffs in the said suit filed a revision being Civil Revision No. 175 of 1980 in the Court of the District Judge Basti. Learned District Judge, Basti (respondent No. 1) by his order dated 12-11-1980 summarily dismissed the said revision. Copy of the order dated 12-11-1980 is annexed as annexure No. 6 to the writ petition. ( 21 ) A counter-affidavit sworn on 15-8-81 by Brij Kishore Das, Mukhtar-e-am of respondent No. 3 has been filed in reply to the said writ petition. In the said counter-affidavit, the allegations made in the writ petition regarding the proceedings which took place in the said suit and the various orders, which were passed, have not been disputed. Copy of the Sarwakari deed dated 19-8-1975 executed by Smt. Yosoda Devi in favour of respondent No. 3 has been filed an Annexure CA-1 to the counter-affidavit. ( 22 ) ANOTHER counter-affidavit sworn on 18-3-1981 by Gyan Prakash Shukla on behalf of respondent Nos. 4 and 5 has also been filed by reply to the writ petition. In the said counter-affidavit, the allegations made in the writ petition regarding the various proceeding in the said suit and various order passed have not been disputed. However, it is alleged in the said counter-affidavit that on the death of the said Ram Das Shukla, the entire property devolved on his widow Smt. Yosoda Devi with absolute and full rights of alienation. ( 23 ) REJOINDER affidavit sworn on 8-7-1981 by Krishnjiwan Tripathi one of the petitioners has been filed in reply to both counter-affidavits. ( 24 ) I have heard Sri Dinesh Pathak assisted by Sri Rakesh Pathak, learned counsel for the petitioners and Sri Tej Bhan Pandey holding brief of Sri B. No. Mishra, learned counsel for respondent No. 3. ( 23 ) REJOINDER affidavit sworn on 8-7-1981 by Krishnjiwan Tripathi one of the petitioners has been filed in reply to both counter-affidavits. ( 24 ) I have heard Sri Dinesh Pathak assisted by Sri Rakesh Pathak, learned counsel for the petitioners and Sri Tej Bhan Pandey holding brief of Sri B. No. Mishra, learned counsel for respondent No. 3. ( 25 ) SRI Dinesh Pathak, learned counsel for the petitioners made the following submissions :-1. The principle of res judicata applies at subsequent stage of proceedings in the same suit. Once the learned trial Court passed order directing for personal appearance of the respondent No. 3 (defendant No. 2 in the said suit), the application No. 57ga which was subsequently filed by respondent No. 3 making same prayer was barred by the principle of res judicata and the learned trial Court had no jurisdiction to entertain the said application No. 57ga. The trial Court had passed the order dated 14-10-1980 in exercising the jurisdiction which was not vested in it. In support of this submission, learned counsel for the petitioners placed reliance upon the following decisions:- (A) Satyadhyan Ghosal v. Smt. Deo Rajin Devi, AIR 1960 SC 941 . (B) Y. B. Patil v. Y. L. Patil, AIR 1977 SC 392 . (C) Hukum Singh v. Prescribed Authority, Muzaffernagar, 1980 All WC 639 : (1980 All LJ NOC 149 ). (2) Once the order for personal appearance had been passed by the learned trial Court, and no good reason was shown for non-appearance, then the learned trial Court was bound to pronounce the judgment in view of provisions of Order X, Rule 4 (2) of the Code of Civil Procedure. (3) It was averred in the said objection 59ga filed by Smt. Tara Devi and petitioners (plaintiffs in the said suit) that Hari Nam Das Vedanti (respondent No. 3) had told the plaintiffs that he (respondent No. 3) was himself not contesting the suit, and that Brij Kishore Das and Sant Das filed the written statement making wrong allegations, and they were in fact contesting the suit. These averments remained uncontroverted. The learned trial Court failed to appreciate this aspect of the matter. These averments remained uncontroverted. The learned trial Court failed to appreciate this aspect of the matter. ( 26 ) IN reply, learned counsel for the respondent No. 3 made the following submissions :- (1) Initial order dated 15-12-1977 for personal appearance of the respondent No. 3 was not binding on the said Brij Kishore Das, as such, it was open to the learned trial Court to consider the matter afresh on the application 60 Ga filed by the said Brij Kishore Das. (2) The order for personal appearance could be passed only on fulfilment of the requirements laid down under Order X, Rule 4 of the Code of Civil Procedure. Nothing has been brought on record to show the order dated 15-12-1977 directing the parties to appear in person on 22-3-1979 had been passed after examining as to whether the pre-conditions for making such direction were fulfilled and recording specific finding in this regard. In fact, even the copy of the order dated 15-12-1977 has not been brought on record of the writ petition. Subsequent orders merely reiterated the direction for personal appearance without considering the aforesaid aspects. ( 27 ) LEARNED Counsel for the respondent No. 3 has placed reliance upon the decision of Jammu and Kashmir Court in Raghnath Matoo v. Sita Ram, AIR 1965 J and K 60. Learned Counsel for the respondent No. 3 submits that in absence of specific finding regarding the fulfilment of pre-conditions laid down in Order X, Rule 4 of the Code of Civil Procedure for directing the personal appearance of the respondent No. 3, the order dated 15-12-1977 passed by the learned trial Court was illegal. (3) Even assuming for the sake of argument that the impugned order dated 14-10-1980 passed by the learned trial Courts is illegal, the said order should not be quashed as it would result in restoring illegal order dated 15-12-1977. Learned Counsel for the respondent No. 3 has placed reliance upon the following decisions in support of his submission. (1) Mahendra Vikram Singh v. Addl. District Judge, Bareilly, (1984) 2 All Rent Cas 361 : (1984) All LJ 1251 ). (2) Chatersen Jain v. District Judge, Dehradun, (1984) 2 All Rent Cas 437. Learned Counsel for the respondent No. 3 has placed reliance upon the following decisions in support of his submission. (1) Mahendra Vikram Singh v. Addl. District Judge, Bareilly, (1984) 2 All Rent Cas 361 : (1984) All LJ 1251 ). (2) Chatersen Jain v. District Judge, Dehradun, (1984) 2 All Rent Cas 437. ( 28 ) TAKING up the first submission made on behalf of the petitioners regarding the applicability of principle of res judicata to the order dated 15-12-1977 passed the trial Court, let us examine the plea raised by the learned Counsel for the respondent No. 3 that the order dated 15-12-1977 directing for personal appearance of the respondent No. 3 was not binding on the said Brij Kishore Das. Learned Counsel for the respondent No. 3 contends that the principle of res judicata can be applied only when earlier decision has been given between the same parties as are involved at the subsequent stage. Since the earlier order dated 15-12-1977, the contention proceeds, was given between Smt. Tara Devi and petitioners (plaintiffs in the said suit) on the one hand and the respondent No. 3 on the other hand, the said order dated 15-12-1977 would not operate as res judicata against Brij Kishore Das, who was not a party to the earlier decision. This contention for the learned counsel for the respondent No. 3 cannot be accepted. It is admitted position that Brij Kishore Das was Mukhtar-e-am of the respondent No. 3 as such, the order dated 15-12-1977 was as much binding on Brij Kishore Das as it was on the respondent No. 3. Therefore, applicability of res judicata cannot be ousted on the ground submitted by the learned counsel for the respondent No. 3. Let us now proceed to consider as to whether the order dated 15-12-1977 can operate as res judicata at the subsequent stage of the suit as contended by the learned counsel for the petitioners. In this connection, let us first consider various decisions cited by the learned counsel for the petitioners. ( 29 ) IN Satyadhayan Ghosal v. Smt. Deorajin Devi, ( AIR 1960 SC 941 ) (Supra), the Apex Court laid down as follow (paragraph Nos. 7, 8 and 16 of the said AIR) :- (7)"the principle of res judicata is based on the need of giving finality to judicial decisions. ( 29 ) IN Satyadhayan Ghosal v. Smt. Deorajin Devi, ( AIR 1960 SC 941 ) (Supra), the Apex Court laid down as follow (paragraph Nos. 7, 8 and 16 of the said AIR) :- (7)"the principle of res judicata is based on the need of giving finality to judicial decisions. What it lays is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law has been decided between the two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suit in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any further litigation proceed on the basis that the previous decision was correct. " (8)"the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken there from or no appeal did lie a higher Court cannot at a later stage of the same litigation consider the matter against?" (16)"it is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final order or decree. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeal to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand. "thus, the principle which emerges from this decision is that the principle of res judicata is applicable at the different stages of the same litigation, as such, if a particular matter is decided in one way at one stage in the litigation then the same cannot be re-agitated at subsequent stage in the same litigation. However, if interlocutory order is passed by the trial Court deciding a particular matter in a particular way and this interlocutory order is not challenged before the higher Court by filing appeal etc. while the case remains pending before the lower Court then such interlocutory order can be challenged before the higher Court when appeal etc. is filed against the final decision in the proceeding before the lower Court. The principle of res-judicata be applied in such a situation so as to prohibit higher Court from examining the correctness of the interlocutory order passed by the lower Court. ( 30 ) IN Y. B. Patil v. Y. L. Patil, ( AIR 1977 SC 392 ) (Supra), the Supreme Court laid down as follows (paragraph No. 4 of the said AIR) :-". . . . . . . . . . . . It is well settled that principles of res judicata can be invoked not only in separate subsequent proceeding, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. . . . . . . . . . Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. . . . . . . . . . "thus, this decision again lays down that principles of res judicata are applicable at subsequent stage of the same proceedings. ( 31 ) IN Hukum Singh v. The Prescribed Authority, Muzaffernagar, (1980 All WC 639 : 1980 All LJ NOC 149) (Supra), a Division Bench of this Court laid down as follows (Paragraph No. 6 of the said A. W. C.) :-". . . . . . . . . . . Even though the case may not come within the purview of Section 10 of the Civil Procedure Code, yet the doctrine of res judicata had been broadly applied and its general principles have been extended even to miscellaneous proceedings and orders passed at different stages of the same litigation or even when one proceeding was a suit and other was not a suit. See Satyadhan Ghosal v. Deorajin Devi, AIR 1960 SC 941 , Arjun Singh v. Mahindra Kumar, AIR 1964 SC 993 , Gulabchand Chhotala Parikh v. State of Gujarat, AIR 1965 SC 1153 . " ( 32 ) THUS, the decision reiterates the proposition that principles of res judicata apply at different stages of the same litigation. ( 33 ) THE law regarding the applicability of the principles of res judicata to interlocutory order has been dealt with in Arjun Singh v. Mahindra Kumar, AIR 1964 SC 993 . In this decision, the Apex Court laid down as follows (Paragraph No. 11 of the said AIR):-". . . . . . . . . . . . If the Court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore, competency to decide the issue or matter, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though S. 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceedings. But where the principle of res judicata is invoked in the case of different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made touching such decisions are some of the materials and relevant factors to be considered before the principle is held applicable. " ( 34 ) THE Apex Court further laid down (Paragraph No. 13 of the said AIR) :-"it is needless to point out that interlocutory orders are of various kinds, some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that parties might not be prejudiced by normal delay which the proceeding before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication but are designed to ensure the just smooth, orderly and expeditious disposal of the suit. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication but are designed to ensure the just smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit nor put an end to the litigation. The case of an application under Order IX, Rule 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the re-opening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate Court. In that sense, the refusal of the Court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issues, whereas in the other case, on proof of fresh facts the Court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the Court. "considering the nature of adjudication which the Court makes under Order IX, Rule 7 of the Code of Civil Procedure, the Supreme Court laid down as follows (Paragraph No. 15 of the said AIR) :-". . . . . . . . . . . . In its essence it (Order IX, Rule 7) is directed to ensure the orderly conduct of the proceeding by penalizing improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. . . . . . . . . . "the Supreme Court further laid down (Paragraph No. 16 of the said AIR) :-"in the circumstances, we consider that a decision or direction in an interlocutory proceeding of the type provided for by Order IX, Rule 7 is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under Order IX, Rule 13. The latter is a specific statutory remedy provided by the Code for the setting aside of ex parte decree, and it is not without significance that under Order XLIII, Rule (d) an appeal lies not against orders setting aside a decree passed ex parte but against order rejecting such an application unmistakably pointing to the policy of the Code being that subject to securing due diligence on the part of the parties to th suit, the Code as far as possible makes provision for decisions in suits after a hearing afforded to the parties. "following principles, amongst others, emerge from this decision of the Apex Court:- (1) The principle of res judicata is applicable at different stages of the same suit. "following principles, amongst others, emerge from this decision of the Apex Court:- (1) The principle of res judicata is applicable at different stages of the same suit. This proposition has also been laid down in the three decisions cited by the learned counsel for the petitioner as discussed above. (2) In order to decide whether the principle of res judicata is applicable in the case of different stages of proceeding in the same suit, it is necessary to examine, inter alia, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made touching such decisions. (3) Interlocutory orders are of various kinds :- (i) Certain interlocutory orders like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that parties might not be prejudiced by mormal delay which the proceeding before the Court usually take. They do not decide in any manner the merits of the controversy in issue in the suit and do not put an end to even in part. Such orders do not impinge upon the legal rights of parties to the litigation, and as such, do not operate as res judicata at subsequent stages of proceeding in the same suit. These orders are capable of being altered or varied by subsequent applications for the same relief on proof of new facts or new situations which subsequently emerge. In case, subsequent applications are based on new facts or new situations which subsequently emerge then it will be open to the Court to pass suitable orders, and the earlier order passed in respect of the same relief will not operate as bar on the basis of the principle of res judicata. However, if subsequent applications are made on the same basis on which earlier application for the same relief has been rejected and no new facts or new situations are brought on record in the subsequent applications, then the subsequent applications should be rejected on the ground that the same amount to abuse of process of Court but not on the ground of the principle of res judicata. (ii) Certain interlocutory orders are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. (ii) Certain interlocutory orders are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit nor put an end to the litigation. For example, order passed under Order IX, Rule 7 of the Code of Civil Procedure, order passed on the application for adjournment etc. The principle of res judicata is not applicable to such orders. Hence, subsequent applications for the same purpose may be filed. Though such subsequent application will not be barred by the principle of res judicata, it will be open to the Court to reject such subsequent application on the ground that no new facts have been brought to justify a different order. However, if new facts are placed before the Court in subsequent applications then it will be open to the Court to pass a different order than that passed earlier. ( 35 ) LET us now examine the order passed for personal appearance under Order X, Rule 4 (1) of the Code of Civil Procedure, in this connection it will be relevant to quote the provisions of Order C, Rule 2, Order X, Rule 3 and Order X, Rule 4 of the Code of Civil Procedure. "2. Oral examination of party or companion of party :- (1) At the first hearing of the suit, the Court - (a) Shall, with a view to elucidating matters in controversy in the suit, examine, orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and (b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanies. " (2) at any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to suit, by which such party or his pleader is accompanied. (3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party. " "3. Substance of examination to be written the substance of the examination shall be reduced to writing by the Judge, and shall form part of the record. ""4. (3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party. " "3. Substance of examination to be written the substance of the examination shall be reduced to writing by the Judge, and shall form part of the record. ""4. Consequences of refusal or inability of pleader to answer :- (1) Where the pleader of any party who appears by apleader or any such person accompanying pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represent ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. (2) If such party fails without any lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. " (Emphasis supplied) ( 36 ) A perusal of Order X, Rule 4 (1) of the Code of Civil Procedure shows that the Court directs for personal appearance of a party in order to get answer to any material question relating to the suit. Thus, the order passed under Order X, rule 4 (1) of the Code of Civil procedure does not by itself adjudicate upon the controversy involved in the suit or upon the rights and duties of the parties to the suit. The order does not put an end to the litigation nor does it involve determination of any issue in controversy in the suit. In fact, the order under Order X, Rule 4 (1) of the Code of Civil Procedure is merely a step in the proceedings in the suit intended to facilitate adjudication of the controversy involved in the suit. Such an order evidently falls in the second category of the interlocutory orders contemplated in the decision of the Apex Court in Arjun Singh v. Mahindra Kumar ( AIR 1964 SC 993 ) (supra ). Hence, principle No. 3 (ii) mentioned above will be applicable to an order passed under Order X Rule 4 (1) for personal appearance of a party. Hence, principle No. 3 (ii) mentioned above will be applicable to an order passed under Order X Rule 4 (1) for personal appearance of a party. Therefore, the order dated 15-12-1977 directing for personal appearance of respondent No. 3 could not operate as res judicata so as to preclude the learned trial Court from passing a different order under Order X, Rule 4 (1) of the Code of Civil Procedure. If new facts were brought before the trial Court at the subsequent stage, it was open to the learned trial Court to pass a different order thereby directing that personal appearance of the respondent No. 3 would not be necessary. ( 37 ) SIMILARLY, the orders passed on certain dates, such as, 25-7-1979 and 2-9-1980 rejecting the applications filed by the respondent No. 3 for exemption from personal appearance did not adjudicate upon any controversy involved in the suit or upon the rights and duties of the parties involved in the suit, as such, such orders could not operate as res judicata. These orders also fall under principle No. 3 (ii) mentioned above. Therefore, if new facts were placed before the Court in an application praying for exemption from personal appearance then it was open to the Court to pass a different order than passed by it on earlier occasion. ( 38 ) A perusal of the order dated 14-10-1980 shows that the application 57ga was filed by respondent No. 3 stating that he had executed Mukhtarnama in favour of Brij Kishore Das, who was managing the affairs regarding the property in question. Another application No. 60ga was filed by the said Brij Kishore Das stating that he was acquainted with the facts of the case and his statement be recorded under Order X, Rule 2 of the Code of Civil Procedure. It is further evident from the impugned order dated 14-10-1980 that the learned trial Court considered it necessary to record the statement of the said Brij Kishore Das for deciding the said applications, and accordingly the statement of Brij Kishore Das was recorded. ( 39 ) THE learned trial Court considered new facts brought before it in the application No. 60ga supported by an affidavit filed by the said Brij Kishore Das and the statement of Brij Kishore Das recorded before the learned trial Court. ( 39 ) THE learned trial Court considered new facts brought before it in the application No. 60ga supported by an affidavit filed by the said Brij Kishore Das and the statement of Brij Kishore Das recorded before the learned trial Court. Thereafter, the learned trial Court concluded that it appeared from the record that respondent No. 3 himself did not attend the Court and in fact, entire dispute or litigation relating to property was attended by Mukhtar-e-am Brij Kishore Das, who was stated to be acquainted with the facts of the case. In the circumstances, the learned trial Court concluded that the legal requirements were fulfilled by the aforesaid statement of the said Brij Kishore Das, and it did not appear necessary to insist on personal appearance of the respondent No. 3. ( 40 ) IT is thus, evident that the impugned order dated 14-10-1980 was passed by the learned trial Court in the light of the new facts placed before it. Earlier order dated 15-12-1977 directing for personal appearance of the respondent No. 3 could not preclude the learned trial Court from passing the impugned order if new facts were brought before it. The impugned order dated 14-10-1980 passed by respondent No. 2 was, in my opinion, perfectly legal, and revision filed by Smt. Tara Devi and petitioners was rightly dismissed summarily by respondent No. 1 by the order dated 12-11-1980. 40-A. The question can be examined from another angle. A perusal of Order X, Rule 2 (1) of the Code of Civil Procedure shows that clause (a) of the said sub-rule provides that at the first hearing of the suit, the Court shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit. Thus this clause (a) of the said sub-rule deals with the oral examination of a party to the suit at the first hearing of the suit. ( 41 ) CLAUSE (b) of the sub-rule (1) of Order X, Rule 2 of the Code of Civil Procedure deals with the oral examination of any person, who is able to answer any material question relating to the suit, by whom any party appearing in person or present in Court of his pleader is accompanied. ( 41 ) CLAUSE (b) of the sub-rule (1) of Order X, Rule 2 of the Code of Civil Procedure deals with the oral examination of any person, who is able to answer any material question relating to the suit, by whom any party appearing in person or present in Court of his pleader is accompanied. Thus, this clause deals with the oral examination of a person who is not a party to the suit. ( 42 ) SUB-RULE (2) of Order X, Rule 2 deals with oral examination of any party to the suit or any such person as mentioned above at any subsequent hearing of the suit. ( 43 ) THUS, under sub-rule (1) as well as sub-rule (2) of Order X, Rule 2 of the Code of Civil Procedure, oral examination of such party or of such person as aforesaid, who happens to be in the Court at the first hearing of the suit or at the subsequent hearing of the suit, as the case may be is contemplated. ( 44 ) ON the other hand, Order X, Rule 4 of the Code of Civil Procedure contemplates a situation where a party is directed to appear in person for oral examination. However, before the Court can issue such direction for personal appearance of a party under Order X, Rule 4 (1) of the Code of Civil Procedure, following conditions must be fulfilled :- (1) There is material question relating to the suit which is to be answered. (2) The pleader of a party who appears by a pleader or any such person accompanying the pleader as is referred to in Rule 2, refuses or is unable to answer such material question relating to the suit. (3) The Court is of opinion that the party whom the pleader or such person represents ought to answer, and is likely to be able to answer if interrogated in person. ( 45 ) IF these conditions are fulfilled then the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. ( 46 ) IT is pertinent to note certain decisions in this regard. ( 47 ) IN Sadeshwar Narain v. Qadir Bakhsh, AIR 1918 Qudh 429, it has been laid down :-". . . . . . . . . . . . . . ( 46 ) IT is pertinent to note certain decisions in this regard. ( 47 ) IN Sadeshwar Narain v. Qadir Bakhsh, AIR 1918 Qudh 429, it has been laid down :-". . . . . . . . . . . . . . BEFORE a legal order can be passed against a pers on directing him to appears on directing him to appear in Court under the provisions of Order X, Rule 4, it is necessary that the Court should find, in the first place, that there are material questions relating to the suit which must be answered either by such party or by his pleader and when such party has a pleader it is only when the pleader is unable or refuses to answer those questions that the Court, under the provisions of Order X, Rule 4 may direct the party to appear in person. "in Parmarath Gir v. Krishna Daya Gir, AIR 1933 All 517, the Division Bench of this Court laid down as follows (page No. 519 of the said AIR) :-". . . . . . . . . . . . . . IT will be observed that the power of the Court under this rule is not an unlimited one. It is only where the partys pleader or recognized agent refuses or is unable to answer a material question that the Court can direct the personal attendance of the party himself. Assuming that admission and denial of documents amounts to a "material question relating to the suit", the Court should have called upon the pleaders of the parties to admit and deny each others documents and if they refused or expressed their inability to do so, then only the Courts could direct the personal attendance of the parties for that purpose. As already stated, the pleaders of the parties never refused or expressed their inability to admit and deny each others documents. No case, therefore, existed for exercise by the Court of its power under Order X, Rule 4, Code of Civil Procedure. As already stated, the pleaders of the parties never refused or expressed their inability to admit and deny each others documents. No case, therefore, existed for exercise by the Court of its power under Order X, Rule 4, Code of Civil Procedure. "in Raghnath Matoo v. Sita Ram AIR 1965 J and K 60, Jammu and Kashmir High Court laid down as follows (paragraph No. 3 of the said AIR) :-"so the Penal Consequences of non-appearance by a party who is directed by the Court to appear are contained in sub-rule (2) of Order X of the Code of Civil Procedure, but the question is whether the requirements of Rule 4 are satisfied in the present case. The requirements of sub-rule (1) of Rule 4 of Order X are that the pleader of the party who is ordered to appear in person should refuse to answer any material question relating to the suit, or that he should be unable to answer such question. Unless either of the two conditions are satisfied, the Penal Consequences as given in sub-rule (2) of Rule 4 cannot at all ensue. "it is thus, evident that the pre-conditions as mentioned in sub-rule (1) of Order X, Rule 4 must be fulfilled before the Court can direct a party to appear in person. ( 48 ) LEARNED counsel for the petitioners has not been able to show that the direction for personal appearance given by the order dated 15-12-1977 had been given by the learned trial Court after examining as to whether pre-conditions laid down by Order X, Rule 4 (1) of the Code of Civil Procedure were fulfilled in the present case and recording finding in this regard. In fact, even the copy of the order dated 15-12-1977 has not been brought on record. In the circumstances, it is not possible to give any decision regarding the validity of the order dated 15-12-1977. In this view of the matter, it is not necessary to consider the submission made by the learned counsel for the respondent No. 3, namely, that even if the impugned order dated 14-10-1980 is assumed to be illegal for the sake of argument, it should not be quashed because it would result in restoring an illegal order dated 15-12-1977. In this view of the matter, it is not necessary to consider the submission made by the learned counsel for the respondent No. 3, namely, that even if the impugned order dated 14-10-1980 is assumed to be illegal for the sake of argument, it should not be quashed because it would result in restoring an illegal order dated 15-12-1977. ( 49 ) COMING to the second submission made by the learned counsel for the petitioners, namely, that once the order dated 15-12-1977 had been passed for personal appearance of the respondent No. 3 and no good reason was shown for non-appearance, the Court was bound to pronounce the judgment under Order X, Rule 4 (2) of the Code of Civil Procedure, it will be relevant to examine the provisions of sub-rule (2) of Order X Rule 4. A perusal of the said sub-rule (2) shows that if a party who has been directed to appear in person under sub-rule (1) of Order X, Rule 4 of the Code of Civil Procedure fails to appear in person without lawful excuse then the Court has two options :- (1) The Court may pronounce the judgment against such party. or (2) The Court may make such order in relation to the suit as it thinks fit. It is, thus evident that even when a party fails to appear in person, the Court may not pronounce judgment against such party. Instead, the Court may make such order in relation to the suit as it thinks fit. In other words, even in the case of non-appearance of a party who has been directed to appear in person, it is not obligatory for the Court to pronounce judgment against such party, it is still open to the Court to make such order in relation to the suit as it thinks fit. Hence, even if the respondent No. 3 did not appear in person on 14-10-1980 despite earlier orders having been passed for such appearance, still the learned trial Court was not bound to pronounce the judgment against the respondent No. 3, and it could pass such order as it thought fit. Accordingly, the learned trial Court passed the impugned order dated 14-10-1980 on a consideration of relevant facts and circumstances brought on record. Accordingly, the learned trial Court passed the impugned order dated 14-10-1980 on a consideration of relevant facts and circumstances brought on record. The contention of the learned counsel for the petitioners that the Court was bound to pronounce the judgment against the respondent No. 3 on account of non-appearance cannot, thus, be accepted. ( 50 ) COMING to the third submission made by the learned counsel for the petitioners in regard to the alleged statement made by the respondent No. 3 to the plaintiffs as mentioned in the objection 59ga, the same be accepted. As per the own showing of the petitioners, repeated applications were being filed by the respondent No. 3 for adjournment or for exemption from personal appearance. In the circumstances, the allegations made in the objection 59ga regarding the alleged statement made by respondent No. 3 to the plaintiffs cannot be believed. If the respondent No. 3 was not himself contesting the suit, there was no occasion for the respondent No. 3 to move the said applications in the suit. The applications clearly contradict the story set up by the petitioners in the objection 59ga regarding the alleged statement of the respondent No. 3 to the plaintiffs. . ( 51 ) IN view of the above discussion, the writ petition lacks merits and the same is liable to dismissed. The writ petition is accordingly dismissed. However, in the circumstances of the case, there will be no order as to costs. Petition dismissed.