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2010 DIGILAW 159 (KAR)

N. Narayana v. Ramesh Kumar

2010-02-08

K.BHAKTHAVATSALA

body2010
Judgment :- 1. The petitioners/defendant Nos. 1 to 8 in O.S. No. 868/2000 on the file of City Civil Judge, Bangalore City, are before this Court, praying for quashing the common order dated 4.12.2009 passed on I.AS.XVII and XVIII in the above said suit at Annexure-J. 2. For the purpose of convenience and better understanding, the petitioners and the respondents are hereinafter referred to as ‘the defendants and ‘the plaintiffs’, respectively, as arrayed in the suit. 3. The brief facts of the case leading to the filling of the Writ Petitions may be stated as under: The respondents/plaintiffs have filed a suit in O S No. 868/2000 on the file of City Civil Judge, Bangalore City, against the present petitioners/defendants for specific performance of agreement dated 6.8.1990 and permanent injunction, etc. Defendant No.1 filed written statement denying the averments of the plaint. At the stage of evidence, the plaintiffs filed two applications (I. As. XVII and XVIII) both under Section 151 of C P C, praying to recall the order dated 6.11.2008 and permit to tender P.W. 3 for cross-examination by the defendants. The defendants filed common objections. The trial Court, after hearing arguments on I. As. XVII and XVIII, allowed both the applications on payment of costs of Rs. 2,000/- and directed the plaintiffs to keep P.W. 3 present on the next dated of hearing. This is impugned in this Writ Petitions. 4. Sri. M.R. Rajagopal, learned Counsel for the Petitioners/defendants, has urged the following grounds : (i) that the plaintiffs failed to keep P.W.3 (M. Vishwanath-scribe of agreement in question) present in spite of granting number of adjournments and ultimately on 6.11.2008, the trial Court has rightly discarded the evidence of P.W.3 and therefore the plaintiffs cannot be permitted to tender P.W.3 for cross-examination: (ii) that the trial Court erred in permitting the plaintiffs to re-open the case and tender P.W.3 for cross-examination though similar relief sought for in I.A. XV dated 4.12.2008 and I.A. XVI dated 26.2.2009 was rejected: (iii) that earlier application I. As. XV and XVI were rejected, the subsequent application I. A. XVII and XVIII are hit by res judicata: (iv) that in support of the case of the defendants, D.W.1 was examined and posted for further examination in chief and at that stage, the plaintiffs filed I. As. XV and XVI were rejected, the subsequent application I. A. XVII and XVIII are hit by res judicata: (iv) that in support of the case of the defendants, D.W.1 was examined and posted for further examination in chief and at that stage, the plaintiffs filed I. As. XVII and XVIII for re-opening the case and tender PW.3 for cross-examination with an ulterior motive; and (v) that the respondents/plaintiffs are protracting the proceedings by filing one application or the other. 5. Learned Counsel for the petitioners cited a decision reported in ILR 2002 KAR 2675 (ABDUL SATTAR AND OTHERS Vs. GURLINGAYYA AND ANOTHER) on the point that the order passed on interlocutory applications and also the orders passed in the same proceedings at earlier stages operate as res judicata in subsequent stage of the same proceedings. 6. The bone of contention of the learned Counsel for the petitioner is that the trial Court erred in passing the impugned order though earlier such applications were rejected and the impugned orders are hit by doctrine of res judicata. 7. According to Black’s dictionary, the word “interlocutory” means provisional, interim, not final, something intervening between the commencement and end. According to Shorter Oxford Dictionary, the word “inter” means pronouncements during the course of action, not finally decisive. 8. The term ‘interlocutory order’ has not been defined in the C.P.C. An order may be a step in the direction of final disposal for the suit or proceedings. For example, orders regarding impleadment of parties, maintainability of a suit, jurisdiction of the court, grant of temporary injunction, appointment of Receiver or Commissioner etc., can be said to be interlocutory orders. The doctrine of res judicata is based on the need of giving finality to judicial decisions. If any interlocutory order decides a controversy in part between the parties, such decision would bind the parties thereto and operate asres judicata at all subsequent stages of the suit and the court will not permit the party to “set the clock back” during the pendency of the proceedings. If any interlocutory order decides a controversy in part between the parties, such decision would bind the parties thereto and operate asres judicata at all subsequent stages of the suit and the court will not permit the party to “set the clock back” during the pendency of the proceedings. In Arjun singh v. Mohindra Kumar ( AIR 1964 SC 993 ), the Supreme Court elaborately discussed the point and held that “It is needless to point our 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 the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. The 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 the process of Court. There are other orders which are also interlocutory, but would fall into a different category. 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 litigations.” In the case on hand, earlier applications (I. A. No XV and XVI) were rejected summarily and the orders do not put an end to the litigation. The test whether doctrine of res judicata is applicable or not, depends upon the facts and circumstances of each case and the nature of order passed at an earlier stage of the proceedings. The test whether doctrine of res judicata is applicable or not, depends upon the facts and circumstances of each case and the nature of order passed at an earlier stage of the proceedings. In other words, the question whether an order passed at one stage would or would not attract the general principle of res judicata depends upon the facts and circumstances of each case and the nature of the order passed at an earlier state of the proceedings. 9. Admittedly, the petitioners have not challenged the earlier order passed on I. As. XV and XVI. The Presiding Officer, who passed order on I. As. XV and XVI was transferred. Thereafter, I. As. XVII and XVIII were filed before the succeeding Presiding officer who considered the applications and allowed the same subject to payment of heavy costs of Rs. 2,000/-. 10. It is pertinent to mention that the case of the plaintiffs is for specific performance of contract. P.W.3 was the scribe. He was examined by filing affidavit evidence and cross-examination of P.W.3 was adjourned on the request made by the learned Counsel for the defendants. Subsequently, the plaintiffs could not keep P.W.3 present for cross-examination as a result of which, the evidence of P.W.3 was struck off. Since the defendants have denied execution of the agreement and P.W.3 (scribe) is a material witness and if he is not tendered before the Court for cross-examination by the defendants, the petitioners would be put to irreparable loss and injury and the same will result in mis-carriage of justice. The trial Court, having examined the facts of the case, has rightly allowed the application for recalling the order dated 6.11.2008 and tender P.W.3 for cross-examination by the defendants’ Counsel. In my considered opinion, doctrine of res judicata is not applicable in the instant case. The decision cited by the leaned Counsel for the petitioners is of no avail. After passing the impugned orders, the case was adjourned to 17.12.2009 for cross-examination of P.W.3, but the Presiding Officer was on leave, I see no illegality or infirmity in the impugned order. 11. In the result, the Petitions fail and they are hereby dismissed.