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2002 DIGILAW 1331 (ALL)

REKHA v. ADDITIONAL CHIEF JUDICIAL MAGISTRATE

2002-09-23

VINEET SARAN

body2002
VINEET SARAN, J. ( 1 ) THE petitioners had filed a Suit no. 944 of 1986 in the court of Munsif, deoria, praying for cancellation of the sale deed dated 7. 8. 1984 executed by respondent no. 3, Bhagwat and for permanent injunction restraining the respondents no. 2 and 3 from interfering with the petitioners possession over the disputed plot. The respondents contested the suit and vide judgement dated 23. 9. 1988, the suit of the petitioners was decreed. Respondents no. 2 and 3 filed civil Appeal No. 208 of 1988 challenging the aforesaid judgement of the Munsif. During the pendency of the appeal, the respondents no. 2 and 3 filed an application for amendment of their written statement. By order dated 22. 8. 1990, while allowing the amendment, the lower appellate court made it clear that the amendment of the written statement would not entitle the parties to lead fresh evidence. However, on 28. 1. 1991, an application for leading fresh evidence was filed by respondents no. 2 and 3. The lower appellate court, after hearing the parties, rejected the said application on 5. 2. 1991. The said respondents filed Civil Misc. Writ petition No. 9467 of 1991 challenging the aforesaid order dated 5. 2. 1991. ( 2 ) DURING the pendency of the aforesaid said writ petition, the respondents no. 2 and 3 filed a second application with the same prayer for filing fresh evidence. After inviting objections and hearing the counsel for the parties, the lower appellate court, on 14. 10. 1991, allowed the subsequent application for adducing fresh evidence. This writ petition has been filed challenging the aforesaid order of the lower appellate court. ( 3 ) I have heard Sri Arun Kumar holding brief of Sri R. S. Misra, learned counsel for the petitioners, as well as Sri a. C. Pandey holding brief of Sri Shashi nandan, learned counsel for the contesting respondents no. 2 and 3. ( 4 ) THE contention of the learned counsel for the petitioners is that the amendment application was allowed by the lower appellate court on 22. 8. 1990 wherein it was specifically stated that because of the amendment, the parties would not be entitled to lead fresh evidence. It was thus urged that the contesting respondents could not thereafter be permitted to lead fresh evidence, as the aforesaid order had not been even challenged by them. 8. 1990 wherein it was specifically stated that because of the amendment, the parties would not be entitled to lead fresh evidence. It was thus urged that the contesting respondents could not thereafter be permitted to lead fresh evidence, as the aforesaid order had not been even challenged by them. Learned counsel further submitted that since such a condition not permitting any fresh evidence had already been imposed, they did not consider it necessary to challenge the order allowing the amendment application. It was also submitted that since the first application had been rejected by the lower appellate court on 5. 2. 1991, the second application with the same prayer would be barred by general principle of res judicata, which would apply to miscellaneous proceedings and orders passed at different stages of the same litigation. In support of this contention, learned counsel for the petitioners relied on two decisions of the apex Court rendered in Satyadhyan ghosal Vs. Smt. Deorajin Debi (A. I. R. 1960 Supreme Court 941); and Prahlad singh Vs. Col. Sukhdev Singh (A. I. R. 1987 Supreme Court 1145) as well as a division Bench of this court in Hukum singh Vs. Prescribed Authority (1980 a. W. C. 639 ). It was lastly contended that even otherwise there were no sufficient grounds for permitting respondents no. 2 and 3 to lead fresh evidence as required under order 41 rule 27 C. P. C. ( 5 ) SRI A. C. Pandey, learned counsel appearing for respondents no. 2 and 3, has submitted that as the amendment had been allowed and a fresh issue was also framed, it was necessary in the interest of justice that the answering respondents be permitted to lead fresh evidence. He further submitted that considering it to be in the interest of justice, the second application for leading the fresh evidence was entertained and allowed by the lower appellate court only after hearing the counsel for the parties. It was urged that the subsequent application would not be barred by the general principle of res judicata. ( 6 ) HAVING considered the submission of the learned counsel for the parties and on perusal of the record, I find that while allowing the amendment application of respondents no. 2 and 3, the lower appellate court had mentioned that no fresh evidence would be led by the parties. ( 6 ) HAVING considered the submission of the learned counsel for the parties and on perusal of the record, I find that while allowing the amendment application of respondents no. 2 and 3, the lower appellate court had mentioned that no fresh evidence would be led by the parties. Despite that, the contesting respondents filed an application, which was rejected on 5. 2. 1991. Even though section 11 of the Code of Civil Procedure may not strictly apply to the present case, the subsequent application filed would certainly be barred by the general principle of res judicata. Once having decided a particular matter in one way at an earlier stage, the courts should not allow the party to re-agitate the matter at a subsequent stage of the same proceedings, especially when there was no change in circumstances so as to entail modification or change in the earlier view taken. Finality to a proceedings have to be given at some stage. If a litigant is permitted to keep re-agitating the same matter again and again, no finality to the proceedings can ever be given. The general principles of res judicata are broad enough to apply to miscellaneous proceedings and orders passed at different stages of the same litigation. ( 7 ) THUS, in my opinion, the order dated 14. 10. 1991 passed by the lower appellate court allowing the application of respondents no. 2 and 3 for leading additional evidence is liable to be set aside. ( 8 ) IN the result, the writ petition is allowed and the impugned order dated 14. 10. 1991 is quashed. However, there shall be no order as to costs.