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2009 DIGILAW 24 (PNJ)

Arun Kumar v. Lal Chand

2009-01-07

AJAY TEWARI

body2009
Judgment Ajay Tewari, J. 1. This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondents for mandatory injunction directing the appellants to remove the alleged encroachment made by them over a portion of the public street, to remove the alleged illegal and wrongful projection built by the appellants and to remove the structures raised on the allegedly exclusive wall of the respondents. 2. Learned counsel for the appellants has raised four arguments. His first argument is that the construction was made after getting the site plan sanctioned from the Municipal Committee and that, therefore, it does not lie in the mouth of the respondents to allege encroachments on municipal land. His second argument is that admittedly his building is behind the municipal drain. This fact also mitilates against the finding of encroachment. His third argument is that the suit of the respondent is barred by res judicata since the predecessor-in-interest of the respondents had filed a similar suit which was dismissed in default and thus the present suit was not maintainable. His fourth argument is that the suit was time barred because admittedly the shop in dispute was constructed in the year 1987 while the present suit was filed in the year 1992. As far as the first two arguments are concerned, in my opinion the same are questions of fact. There is also an application for additional evidence to place on record certain photographs. I find that the same does not satisfy the stringent requirements of Order 41 Rule 27 of the CPC. 3. With regard to the question of res judicata learned counsel for the appellants has relied upon Amir Din Shahab Din v. Shiv Dev Singh Jhanda Singh reported as AIR (34) 1947 Lahore 102. while learned counsel for the respondents has relied upon Ranjit Singh v. Gurnam Singh and another, reported as 1998(4) RCR(Civil) 528 : 1999(1) Indian Civil Cases 148., Ranveer Singh v. The District Judge, Tehri Garhwal and others, reported as 1998(2) RCR(Rent) 605 : 1999(1) Rent Law Reporter 56., Salwant Singh and others v. Surinder Singh and others, reported as 1997(2) RCR(Civil) 170 : 1997 (Suppl.) Civil Court Cases 363 (P&H). and Piar Singh v. Sarju Singh and Another, reported as 2000(2) Civil Court Cases 522. 4. and Piar Singh v. Sarju Singh and Another, reported as 2000(2) Civil Court Cases 522. 4. In Amir Din Shahab Dins case (supra) a second suit was filed during the pendency of the first and a Division Bench held as follows :- "Their appeal was heard in the first instance by a learned Single Judge of this Court who, in view of the difficulty of the question of law involved, referred the case to a Division Bench. In so far as the view of the learned Senior Sub Judge as to the operation of the bar created by O.9 R. 9, being confined merely to a suit instituted in respect of the same cause of action after the dismissal under O.9 R. 8, of the first suit is concerned, it is perfectly sound and well-founded and indeed the learned counsel for the appellants did not make any attempt to find fault with it. That, however, does not mean that the present suit is not barred otherwise and can be tried on the merits. Although the present suit cannot be dismissed as barred under O.9 R. 9, in my judgment it is certainly liable to be dismissed as offending against the well known maxim that no one shall be twice vexed with one and the same cause, and on the ground of its institution and trial amounting to an abuse of the process of the Court. The maxim of law prohibiting a defendant being twice vexed with the same cause is very well recognised and forms the foundation of the rules of law embodied in Order 2 Rule 1 and Order 2 Rule 2 Civil P.C." 5. In the present case admittedly predecessor-in-interest of the respondents filed a similar suit against the appellants which was Ex.D2. The appellants filed written statement Ex.D3 and Ex.D4 and the suit was dismissed under Order 9 Rule 8 CPC by order Ex.D5. A perusal of Ex.D2 and Ex.D5 reveals that the relief claimed was similar to that as has been sought in the present case. 6. In the case of Ranit Singh (supra) this Court had held that even if once a suit for prohibitory injunction with regard to forcible dispossession was rejected under Order 9 Rule 8 CPC, a second suit would not be barred in case a similar threat comes subsequently. 7. 6. In the case of Ranit Singh (supra) this Court had held that even if once a suit for prohibitory injunction with regard to forcible dispossession was rejected under Order 9 Rule 8 CPC, a second suit would not be barred in case a similar threat comes subsequently. 7. In the case of Ranveer Singh (supra) Justice D.K. Seth of the Allahbad High Court (as his Lordship then was) held that a second application under Section 4 of the U.P.Public Premises (Eviction of Unauthorised Occupants) Act, 1972 was held to be maintainable after the dismissal of a similar application in default since as per his Lordship the CPC as such was not applicable to the proceedings under the said Act. 8. The case of Piar Singh (supra) merely enumerates the various ingredients for the applicability of the provisions of Order 2 Rule 2 CPC and held that the earlier suit was based on tenancy rights whereas the subsequent suit was based on adverse possession. 9. In the case of Salwant Singh and others (supra) it was laid down that in order to successfully raise a plea of res judicata it was necessary to place on record the copies of the pleadings and the judgment and that since the same were not placed on the record of the case the finding of res judicata could not be successfully established. 10. In my opinion the case in hand would be covered by the judgment of the Lahore High Court in Amir Din Shahab Dins case (supra). In the case of Ranjit Singh (supra) what was being sought was prohibitory injunction and this Court had held the second suit to be maintainable on the ground of existence of fresh threat. Such is not the case here. In Ranveer Singhs case (supra) it was held that the provisions of the CPC were not applicable. In the case of Piar Singh (supra) the two suits proceeded on two different grounds altogether while, as far as the case of Salwant Singh (supra) is concerned, it was held as incumbent to produce on record the copies of the pleadings. In the present case the pleadings of the previous suit have been placed on record as Ex. D2 to Ex. D5. In the present case the pleadings of the previous suit have been placed on record as Ex. D2 to Ex. D5. The argument of learned counsel for the respondents that the previous suit was allowed to be dismissed in default by the predecessor since he had sold the property in dispute to the respondents would not help them get over the bar of Order 9 Rule 9 CPC. There was no embargo of the respondents in getting the earlier suit revived since they had stepped into the shoes of their seller. I thus hold that the present suit was barred under the provisions of Order 9 Rule 9 C.P.C. As regards limitation learned counsel for the respondents has urged (and rightly so in my opinion) that the present suit would not be covered under Article 113 but would be covered under Article 111. On this issue also the findings of the Courts below are affirmed. In the result this appeal is allowed on the ground that the present suit was barred under the provisions of Order 9 Rule 9 C.P.C.