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2004 DIGILAW 307 (AP)

A. Elizabeth v. N. Chittaiah

2004-03-12

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS civil revision petition is filed against the order dated 5-1-2002 passed by the Court of I Additional Chief Judge, city Civil Court, Secunderabad, refusing to register the appeal preferred against the order dated 17-10-2001 passed in O. S. (SR) no. 9688 of 2001 by the I Junior Civil Judge, city Civil Court, Secunderabad. ( 2 ) THE genesis of the case, in brief, is as under: ( 3 ) THE mother of the petitioner was residing in premises bearing No. 9-3-205, regimental Bazar, Secunderabad. The respondent filed R. C. No. 47 of 1992 before the Additional Rent Controller, Secunderabad, for eviction of the petitioner s mother on various grounds. Through order dated 25-11-1994 the Additional Rent Controller directed eviction of the petitioner s mother. She filed R. A. No. 7 of 1995 before the additional Chief Judge, City Small Causes court, Hyderabad. The appeal was dismissed on 25-1-2001, against which C. R. P. No. 4161 of 1999 was filed in this Court. The revision was also dismissed through order dated 24-1-2001. ( 4 ) THE petitioner came on record in these proceedings, since her mother died at The petitioner has since been evicted. ( 5 ) THE petitioner filed O. S. (SR) no. 968s of 2001 in the Court of the I Junior civil Judge, City Civil Court, Secunderabad, for the relief of setting aside the order in r. C. No. 47 of 1992, dated 25-11-1994 alleging that the respondent was never the landlord and the entire proceedings were vitiated by fraud. The Trial Court refused to register the suit on the ground that it is barred by the principle of res judicata and once the matter has assumed finality at the stage of the High court, it is not at all competent for the petitioner to seek the said relief. A detailed order dated 17-10-2001 was passed for rejecting the plaint. ( 6 ) AS observed earlier, the petitioner preferred an appeal, being AS (SR) No. 9701 of 2001 before the I Additional Chief judge, City Civil Court, Secunderabad, against the order of rejection of plaint. Through a detailed order dated 5-1-2002 the lower appellate Court refused to register the appeal. ( 6 ) AS observed earlier, the petitioner preferred an appeal, being AS (SR) No. 9701 of 2001 before the I Additional Chief judge, City Civil Court, Secunderabad, against the order of rejection of plaint. Through a detailed order dated 5-1-2002 the lower appellate Court refused to register the appeal. ( 7 ) LEARNED Counsel for the petitioner submits that the Trial Court as well as the lower appellate Court have refused to register the proceedings on the ground that they are barred by the principle of res judicata and being a mixed question of fact and law, it could have been decided only on recording of evidence. He submits that the Courts below ought to have atleast registered the proceedings and issued notices to the respondent, so that the matter could have been decided on merits. ( 8 ) THE suit was filed for the relief of setting aside the order in R. C. No. 47 of 1992 on the file of the Additional Rent controller, Secunderabad. There existed a landlord-tenant agreement between the mother of the petitioner and the respondent. No fraud was alleged against the respondent. The Rent Controller, the appellate Court and this Court have consistently held that the petitioner was liable to be evicted, and she has accordingly been evicted. The petitioner came on record in the said proceedings as the legal representative of her mother. She is not clear as to whether she or her mother have disputed the ownership of the respondent vis-avis, the property in question. If they raised such a dispute, they cannot be permitted to re-agitate. If they did not, then also it is not open to them since the principle of constructive res judicata operates. ( 9 ) IF at all the petitioner is of the view that an important question of fact missed the attention of this Court or the rent Controller, or that the judgments at various stages were tainted with fraud, the only course open to her was to seek review of the concerned order or judgment. The question of filing a fresh suit, under these circumstances, does not arise. The plea raised by the petitioner in her suit even if taken on its face value, is clearly barred by the principle of res-judicata or constructive res judicata. The question of filing a fresh suit, under these circumstances, does not arise. The plea raised by the petitioner in her suit even if taken on its face value, is clearly barred by the principle of res-judicata or constructive res judicata. ( 10 ) THE principle underlying the concept of constructive res judicata is that a party to the proceedings shall put forward all the contentions open to it at a time and different contentions relating to the same subject-matter cannot be permitted to be raised independently in various proceedings. Unless this principle is followed in its letter and spirit, the parties may, with impunity, initiate proceedings one after the other on a fresh ground each time. The very object of incorporating Section 11 of the Code of Civil Procedure (CPC), namely, to prevent multiplicity of proceedings on the same issue would be defeated in such cases. ( 11 ) IT is true that the question of res judicata is a mixed question of fact and law. However, it is not necessary to hear the parties to record a further finding on fact, if it is already bome out by the record. The necessity to hear any party would arise only if there is any doubt as to the correctness of the plea put forward by one of the parties. If the claim stands barred in a suit on the principle of res judicata on the undisputed facts, the court is not under an obligation to register the suit or call upon the defendants to put-forth their defence. Such a course of action is permissible under Rule 11 of Order VII c. P. C. In this case, the facts are borne out by the record and even if what is stated by the petitioner is taken as true, it stands barred by the principle of res judicata. Under these circumstances, no exception can be taken to the order passed by the trial Court and the one passed by the lower appellate Court. ( 12 ) THE civil revision petition is accordingly dismissed.