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2004 DIGILAW 141 (MP)

Ambika Prasad Bakshi v. Prabhudayal Mali

2004-02-10

K.K.LAHOTI

body2004
JUDGMENT The petitioner aggrieved by the order Annexure P-l dated 17.11.2003 passed by First Additional Judge to the Court of Ist Civil Judge, Sagar, in Civil Original Suit No. 34-A/2003, has filed this petition. By the impugned order, the Court below allowing the application filed by respondents under section 9 of CPC recorded a finding that the suit is barred by principle of res judicata and dismissed the suit. The learned counsel appearing for petitioner submits that the order passed by the Court below is neither appealable nor revisable and this petition may be entertained. The contention is that the trial Court without following the procedure of law decided the application filed by respondents. Before deciding the application under section 9 of CPC and to consider the plea of res judicata, it was necessary for the respondents to place all material on record and the trial Court ought to have considered the pleadings of previous suit, issues and the judgment without which plea of res judicata cannot be decided. Reliance is placed to a judgment of this Court in the case of State of M.P. v. Babu Lal 1992 JLJ 25 . Contending aforesaid, the learned counsel for petitioner submits that this petition may be entertained and the order passed by the trial Court may be set aside. In respect of maintainability of this petition, the learned counsel has relied on the judgment of the Apex Court in case of Ratan Singh v. Vijaysingh AIR 2001 SC 279 . From the perusal of the order Annexure P-1 passed by the trial Court, it appears that the plaintiff petitioner was claiming the suit property as a successor of Sardar Bahu. Previously, one Gukul Prasad filed a suit against Laxman and Jairam, which was dismissed by the trial Court. Against the judgment and decree of the trial Court, appeal was preferred by Gokul Prasad, but remained unsuccessful. In Second Appeal No. 1034/65, the High Court on 18.7.1972 while setting aside the judgment and decree of the Courts below decreed the suit of Gokul Prasad. Against the judgment and decree of the High Court, Jai Ram and Hari Ram (legal heirs of Laxman) filed SLP before the Apex Court, which was granted. In Second Appeal No. 1034/65, the High Court on 18.7.1972 while setting aside the judgment and decree of the Courts below decreed the suit of Gokul Prasad. Against the judgment and decree of the High Court, Jai Ram and Hari Ram (legal heirs of Laxman) filed SLP before the Apex Court, which was granted. The Apex Court in Civil Appeal No. 2272/1972 set aside the order passed by the High Court and the judgment of the trial Court was affirmed, it is found that the defendants Laxman and Jairam were sub-tenants and title of plaintiff Gokul Prasad was not found proved. Subsequently, Gokul Prasad died. His wife Sardar Bahu succeeded and after the death of Sardar Bahu, plaintiff Ambika Prasad who is nephew of Gokul Prasad has filed this suit on the ground that be being the sole successor of Gokul Prasad and Sardar Bahu is bhumiswami of the land and is in possession of the land. He also pleaded that on 16.6.1960, Jai Ram handed over possession of this land to Gokul Prasad. The Supreme Court has finally decided the matter, and thereafter the present suit has been filed by the petitioner claiming rights through Gokul Prasad and Sardar Bahu. Considering aforesaid, the trial Court found that the present suit is barred by principle of res judicata and dismissed it. Firstly, it may be seen whether the order passed by the trial Court may be challenged in appeal or revision or the only remedy is petition under Article 227 of the Constitution of India. The order passed by the trial Court dismissing the suit of the plaintiff under section 9 of CPC on the ground that suit is barred by principle of res judicata comes within the purview of 'adjudication determining the rights of parties conclusively with regard to matter in controversy'. The order passed by the trial Court comes within the definition of decree and is appealable before the District Court. The judgment relied upon by the petitioner in Ratan Singh (supra) is a case where application for condonation of delay and consequently dismissal of the appeal as barred by time was under consideration. The Apex Court while considering the aforesaid held that there is no adjudication in the suit and rights of the parties were not determined and the rejection of application for condonation of delay will not amount to a decree. The Apex Court while considering the aforesaid held that there is no adjudication in the suit and rights of the parties were not determined and the rejection of application for condonation of delay will not amount to a decree. The aforesaid judgment is based on entire different set of facts and is not applicable in the present case. In the present case, the trial Court found that the present suit is barred by the principle of res judicata and the controversy between the parties has already been decided. The petitioner is claiming his rights through Gokul Prasad and Sardar Bahu, whose matter was already decided by the Apex Court. The trial Court after considering the objection of the petitioner has determined rights of the parties and the matter in controversy has been decided. In the circumstances, the order passed by the trial Court is a decree within the meaning of section 2(2) of CPC and is appealable before the District Court. In the circumstances, the petitioner is having efficacious alternative remedy by filing appeal against the impugned order and at this stage, this petition cannot be entertained. Consequently, this petition is dismissed with liberty to the petitioner to file appeal against the order Annexure P-1. As the petitioner has filed this petition within a period of 30 days from the date of passing order Annexure P-1, in the circumstances, the petitioner is allowed 30 days' time from today to file appeal before the appropriate Court, and if such an appeal is filed within a period of 30 days from today, the appel1ate Court shall entertain and decide the appeal in accordance with law without going into the question of limitation. Office is directed to return the certified copy of the order Annexure P-1 if the petitioner or his counsel appears in the office and supplies photocopy of the order with a prayer to return the certified copy to him. No order as to costs.