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2011 DIGILAW 528 (CAL)

Dilip Kumar Halder v. Mira Halder

2011-04-12

DIPANKAR DATTA

body2011
Judgment : 1. A suit for declaration, partition and permanent injunction instituted by the petitioner against the opposite parties has given rise to Title Suit No.12 of 2007. It is pending on the file of the learned Civil Judge (Senior Division), 8th Court at Alipore, South 24 Parganas. The suit is being contested by the opposite parties by filing written statement. 2. The petitioner had filed an application under Order XXXIX Rule 1 of the Code of Civil Procedure (hereafter the Code) read with Section 151 thereof. By an order dated March 20, 2007, the trial Court granted ad-interim injunction. It held that the plaintiff had right to use and occupy the suit property being one of the co-sharers without any interference and that the defendants were restrained from disturbing him to use and occupy the suit property. 3. The said application was ultimately disposed of on contest by an order dated May 27, 2009. The trial Court restrained the defendants, their men and agents by way of “temporary injunction from obstructing or interfering into the free access of the plaintiff or his men and agents to egress and ingress to the suit schedule property in any manner till disposal of the suit”. The ad-interim order of injunction dated March 20, 2007, was accordingly modified and made absolute. 4. The petitioner had, prior to disposal of the injunction application, in an application under Section 151 of the Code dated June 29, 2007 alleged that the defendants despite the order of injunction dated March 20, 2007 were not granting him access to the schedule property. It was also claimed therein that the petitioner ought to be allowed to take out articles from the ‘B’ schedule property. In such application, the petitioner made the following prayer : “It is, therefore humbly prayed that your Honour may be pleased to pass an order directing the officer-in-Charge of Tollygunge Police Station to take necessary steps so that the plaintiffs will get free entry for engressing and ingressing to and from and to use and occupy the joint ‘B’ schedule suit property i.e. 31B, Pratapaditya Road, Kolkata 7000026 and the order of this Ld. Court be implemented properly and/or to pass such other order or orders as your Honour may deem fit and proper.” 5. Court be implemented properly and/or to pass such other order or orders as your Honour may deem fit and proper.” 5. After the injunction application was disposed of, the application under Section 151 was taken up for consideration by the trial Court. By an order dated March 19, 2010 the petition was rejected. While taking into consideration the order dated May 27, 2009 passed by it, the trial Court recorded as follows : “When this order is vivid then the question of passing order for taking out the articles by the plaintiff from the first floor does not arise at all precisely because the order is for not obstructing or interfering into the free access of the plaintiff or his men and agents to egress and ingress to the suit schedule property. Here, it is not mentioned as from obstructing or interfering into taking out the articles by the plaintiff from the schedule property. And if this manner is used by the plaintiff in order to taking out the articles from the schedule property obviously it will be amounting to violation of the order of injunction by the plaintiff and the question of allowing 151 petition for the interest of the plaintiff does not arise at all. At best, plaintiffs should be under obligation to assist to comply with the order of injunction as the defendant is found to comply with the order of injunction as because it is not transpired from the petition and hearing of both sides that the defendants are trying to take out the articles from the schedule property for which the defendants are restrained by way of injunction, but it is found that the plaintiff is trying level best to take out the articles from the schedule property. In the order passed by the Learned Court dated 27-05-2009 the words ‘egress’ and ‘ingress’ have been used. Egress and ingress means to have access freely to accomplish pursuits These are not meant for taking out or taking any articles from the schedule property. So, in this circumstances, it is vividly to hold that there is no disturbance or obstruction from the side of the defendants for plaintiff or his men and agents in the course of egress and ingress to the schedule property.” 6. So, in this circumstances, it is vividly to hold that there is no disturbance or obstruction from the side of the defendants for plaintiff or his men and agents in the course of egress and ingress to the schedule property.” 6. The plaintiff again filed an application under Section 151 of the Code on September 24, 2010 alleging that the order of injunction May 27, 2009 is being violated by the defendants in view of rejection of the application for police help. It was prayed in the application as follows : “It is, therefore humbly prayed that your Honour may be pleased to pass an order directing the officer-in-Charge of Tollygunge Police Station to take necessary steps so that the plaintiffs will get free entry for engressing and ingressing to and from and to use and occupy his flat in the ‘B’ schedule suit property i.e. 31B, Pratapaditya Road, Kolkata-7000026 and the order of this ld. court be implemented properly and/or to pass such other order or orders as your Honour may deem fit and proper.” 7. The opposite parties opposed the application by filing a written objection, whereupon it was heard on contest by the trial Court on January 11, 2011. For reasons recorded in the order passed that day, the application under Section 151 of the Code was rejected. 8. The order dated January 11, 2011 is under challenge in the present revisional application dated March 10, 2011. 9. Mr. Bhattacharya, learned advocate for the petitioner, contended that the Court having injuncted the defendants from interfering with the petitioner’s access to the suit property, it was the duty of the Court to implement its earlier order by granting police help so as to facilitate the petitioner’s ingress to and egress from such property. In support of his submission, Mr. Bhattacharya relied on the decisions reported in (1996) 4 SCC 622 and AIR 1986 Cal 220 . He, accordingly, prayed that the impugned order ought to be set aside and a direction given allowing the petitioner free access to the suit property. 10. Mr. Mitra, learned advocate representing the opposite parties contended that the trial Court did not commit any illegality in rejecting the petition under Section 151 of the Code by the order under challenge. He, accordingly, prayed that the impugned order ought to be set aside and a direction given allowing the petitioner free access to the suit property. 10. Mr. Mitra, learned advocate representing the opposite parties contended that the trial Court did not commit any illegality in rejecting the petition under Section 151 of the Code by the order under challenge. According to him, the petitioner did not disclose in the petition filed on September 24, 2010 that the earlier petition filed on June 29, 2007 had been rejected by the trial Court on March 19, 2010. He further submits that the real purpose for filing the repeated applications under Section 151 of the Code by the petitioner is that he seeks an order from the trial Court to allow him remove articles from the suit property which are the joint properties of the parties and does not exclusively belong to the petitioner. The order of the trial Court while disposing of the injunction application did not permit the petitioner to remove articles from the suit property and, therefore, what the petitioner could not achieve directly cannot be allowed to be achieved by him indirectly by the Court. He also contended that the earlier Section 151 application having been rejected on merits, the second application was barred by res judicata and, therefore, the petitioner had no right in law to claim any order either from the trial Court or from this Court to facilitate removal of articles from the suit property. He hastened to add that since the defendants have never restrained the petitioner from enjoying the suit property, there is no merit in this application which ought to be dismissed. 11. In reply, Mr. Bhattacharya submitted that question of res judicata does not arise 12. I have heard learned advocates for the parties and perused the materials on since the application under Section 151 of the Code dated September 24, 2010 was filed on a subsequent cause of action record. The trial Court while making the ad- interim order of injunction dated March 20, 2007 absolute by the subsequent order dated May 27, 2009 only ensured free access of the petitioner to the suit property i.e. his ingress thereto and egress there from, without disturbance from the side of the defendants. The order did not permit him to remove any article from the suit property. The order did not permit him to remove any article from the suit property. Although the petitioner did not in any of his two applications under Section 151 of the Code claim an order that he should be allowed to remove articles from the suit property, he prayed for police help to implement the order (s) with the intention of facilitating removal of articles from the suit property. The defendants having set up a claim that the articles in the suit property are jointly owned by the parties to the suit and without there being any determination by the trial Court in respect of ownership thereof, the trial Court was right in its conclusion that the application under Section 151 did not call for any interference. It has been submitted by Mr. Mitra that the defendants are not in any manner obstructing the plaintiff’s access to the suit property but that attempts made by him to remove the articles there from have been resisted and in so doing, no part of the order of injunction has been violated. I quite agree with him that the plaintiff in terms of the order of injunction is not clothed with any right to remove any article from the suit property in the garb of police help, except without leave of the Court. The application under Section 151 of the Code was, therefore, rightly rejected. 13. There is one other reason for supporting the order of the trial Court. Although Mr. Bhattacharya is right in his contention that the application dated September 24, 2009 is not barred by res judicata being founded on a separate cause of action, I am of the considered opinion that the application in the manner it has been worded was barred in view of the principles of ‘issue estoppel’. One may usefully refer to the decision of the Supreme Court reported in AIR 2005 SC 626 (Bhanu Kumar Jain vs. Archana Kumar Jain & anr.). One may usefully refer to the decision of the Supreme Court reported in AIR 2005 SC 626 (Bhanu Kumar Jain vs. Archana Kumar Jain & anr.). While dealing with the concepts of res judicata and issue estoppel, the Supreme Court had the occasion to refer to the decision reported in 1964 (1) ALL ER 341 (Thoday vs. Thoday) wherein Lord Diplock ruled as follows : “…….’cause of action of estoppel’, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the nonexistence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist i.e. judgment was given on it, it is said to be merged in the judgment…….If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatom.” 14. In the present case, the issue that the defendants had been disobeying the order of ad-interim injunction passed by the trial Court and, therefore, police help was necessitated to implement such order stood rejected by the order dated March 19, 2010. The same issue, as raised in the first application was again raised in the second one filed on September 24, 2010 and was ultimately rejected by the order dated January 11, 2011. The issue raised in the two applications under Section 151 being identical and the issue in the first application having been decided against the petitioner, he was estopped from raising the same issue in the second application. 15. I have considered the decisions cited by Mr. Bhattacharya. The proposition laid down therein can hardly be doubted. However, the same has no application on facts and in the circumstances of this particular case. 16. For the said reasons, I see no ground to interfere with the order under challenge and the same is upheld. 17. This application is dismissed, without costs. Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.