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Madhya Pradesh High Court · body

2012 DIGILAW 348 (MP)

Narayan Singh v. Babulal

2012-03-27

K.K.TRIVEDI

body2012
Judgment ( 1. ) THIS revision is directed against the order dated 24-8-2011, by which the preliminary objection raised by the petitioner/defendant with respect to the dismissal of the suit, as hit by res judicata has been rejected by the trial Court. ( 2. ) THE controversy in short is that a Civil Suit was filed by the respondent No. 4 against the petitioner and two others in the Court of V Additional District Judge, Bhopal, seeking a declaration that the sale deed dated 6-10-2001 is void and is not binding on the said plaintiff and a decree of permanent injunction was also claimed. The said suit was contested by the petitioner herein. Written statement was filed. The issues were framed and the case was fixed for recording of the evidence of the parties. The respondent No. 4/plaintiff failed to produce his witnesses, sought an adjournment by making application and considering all such facts on 4-5-2005, the trial Court reached to the conclusion that there was no evidence available to the respondent No. 4/plaintiff and, therefore, his witnesses were not present before the Court despite granting opportunities on 2-12-2004, 17-12-2004, 17-1-2005, 14-2-2005 and on 13-3-2005. The trial Court thereafter dismissed the suit and directed drawing of a decree. Since the suit was said to be dismissed for want of evidence and not for want of prosecution, same was to be treated as dismissal of the suit under the provisions of Order 17, Rule 2 of the Code of Civil Procedure. It is contended that since no appeal was preferred against such a judgment and decree, it has attained finality and, thus, it was to be held that the respondent No. 4/plaintiff had no merits whatsoever to challenge the sale deed. However, fraudulently, in connivance with others, a second suit was filed in the Court of VIII Additional District Judge, Bhopal, by the respondent No. 4/plaintiff along with respondents No. 1 to. 3 for the very same relief, but further alleging that on 27-6-2008, the cause of action accrued to the respondents for filing of the suit and on the basis of subsequent sale deed dated 27-6-2008, the suit was valued at Rs.6,48,000/- and filed by the respondents. Upon service of the notice, a written statement was filed by the petitioner opposing the suit and the preliminary objection with respect to res judicata of the suit was raised. Upon service of the notice, a written statement was filed by the petitioner opposing the suit and the preliminary objection with respect to res judicata of the suit was raised. The application to this effect was also made, but the same has been dismissed, therefore, the present Civil Revision is required to be filed. ( 3. ) THIS Court has entertained the revision, has issued the notices to the respondents and Registry has indicated that all the respondents are served. This fact is duly recorded, but neither anybody has appeared on behalf of respondents to oppose the revision petition nor any reply to the I.A., for grant of interim relief has been filed. The service report indicates that all the notices were served on one person Shri Babulal Gond. The service of notice of revision petition is to be held good as said Babulal himself is respondent before this Court and if, he has been served with the notice of the revision, he is aware of the proceedings. ( 4. ) LEARNED counsel for the petitioner has, vehemently, contended that since on first occasion when the suit filed by the respondent No. 4/ plaintiff was being tried, categorical facts were recorded by the Court that despite granting opportunity the respondent No. 4/plaintiff in the first suit was unable to produce the evidence, the suit was liable to be dismissed. However, the Court has drawn a decree and, therefore, it is to be treated as if the suit of the plaintiff/ respondent No. 4 was dismissed on merit and, as such, the second suit would be barred by res judicata. Placing reliance in various law laid down by the Apex Court, it is contended vehemently that if such a situation is pointed but to the Court, it was necessary to examine the law, the provisions and the decisions of the Apex Court and then to decide whether the res judicata would be applicable or not. ( 5. ) IT is contended by the learned counsel for the petitioner that nothing has been discussed in this respect by the trial Court that as per the law laid down by the Apex Court, the passing of a judgment and decree would amount to res judicata or not. Relying in the case of Sajjadanashin Sayed Md. B.E. Ed. (D) by L.Rs. Relying in the case of Sajjadanashin Sayed Md. B.E. Ed. (D) by L.Rs. vs. Musa Dadabhai Ummer and others, AIR 2000 SC 1238 , learned counsel for the petitioner has contended that the test laid down by the Apex Court has to be kept in mind. It is contended that while applying the principle of res judicata the test as laid down by the Apex Court is required to be applied. First and foremost it is to be seen that the suits contain the same issue directly and substantially, the parties are identical and that adjudication of the issue has been done or not. Though in the claim made in the first suit, it was said that there was an agreement to sell in favour of the plaintiff in the said suit by the vendor with respect to the suit property and that the plaintiff in the said suit was put in possession of the land, yet that issue was to be decided only with respect to the respondent No. 4/plaintiff in the first suit. The respondents No. 1 to 3 were not at all made a party in the said suit as is abundantly clear from perusal of the plaint filed in the first suit Annx.A/1. Of course, the plaintiff/respondent No. 4 in the said suit has said that a sale deed executed in favour of petitioner herein by the vendor in the said suit was not binding on the said plaintiff, but other issue which has been raised with respect to the transfer of a land of Scheduled Tribe in favour of a non- tribe person was not at all raised. Therefore, there is a difference in the two suits. ( 6. ) APART from that how the earlier suit was dealt with and whether could it be said that merely because of drawing a decree, the suit was said to be dismissed on merit which would attract the principle of res judicata in a subsequent suit or not, is to be examined. Order 17, Rule 1 of Code of Civil Procedure prescribes for the power of Court to grant time and adjournment of hearing. Sub-rule (2) of Rule 1 of Order 17 of Code of Civil Procedure prescribes that a cost of adjournment can also be imposed. Order 17, Rule 1 of Code of Civil Procedure prescribes for the power of Court to grant time and adjournment of hearing. Sub-rule (2) of Rule 1 of Order 17 of Code of Civil Procedure prescribes that a cost of adjournment can also be imposed. Rule 2 of Order 17 of Code of Civil Procedure prescribes for the procedure if parties fail to appear on the day fixed. If a suit is dismissed under the provisions of Order 17, Rule 2 of the Code of Civil Procedure, then any of the mode available under Order 9 of Code of Civil Procedure are to be adopted. Order-17, Rule 2 of Code of Civil Procedure simply prescribes that Court may proceed notwithstanding either parties failed to produce evidence etc. In a case, if partially the evidence is recorded, the same is to be taken into account by the trial Court and issues are to be decided on the basis of availability of the evidence. In absence of the party, the suit is required to proceed as per the provisions of Rule 2 of Order 17 of Code of Civil Procedure. Now Order 9 of Code of Civil Procedure prescribes the manner as to how the Court is required to pronounce orders in accordance to attendance of parties or what procedure is required to be adopted if parties fail to appear as the same is only for the appearance of the parties and consequence of non- appearance. If a suit is dismissed under Order 9, Rules 1, 2 and 3 of Code of Civil Procedure, the rights of a plaintiff are saved under Rule 4 of Order 9 of Code of Civil Procedure to bring a fresh suit or to make an application for restoration. The decree is to be drawn only if a suit is dismissed under Order 9, Rule 8 of Code of Civil Procedure and that will make available a ground for filing of an appeal. However, Order 17 of Code of Civil Procedure nowhere prescribes for passing of a decree except under Rule 3 of the said Order if the procedure as prescribed under Rule 2 of Order 17 of Code of Civil Procedure is to be followed. However, Order 17 of Code of Civil Procedure nowhere prescribes for passing of a decree except under Rule 3 of the said Order if the procedure as prescribed under Rule 2 of Order 17 of Code of Civil Procedure is to be followed. Therefore, merely because a decree is passed, can it be said that there was a consideration of the merit of the suit and, as such, the same would operate as res judicata in a subsequent suit ? In the considered opinion of this Court, if we go through the order passed by the Court while dismissing the first Civil Suit, the merit of the claim made in the said suit was never assessed. On the other hand, the Court has categorically said that the suit is dismissed for default of appearance of the witnesses of the plaintiff. The application made for adjournment under Order 17, Rules 1 and 2 of Code of Civil Procedure, was rejected by the Court and consequently the suit was said to be dismissed, but not as per the provisions of Order 17, Rule 2 of Code of Civil Procedure. Mere drawing of a decree will not satisfy the consideration of merit of the suit made in the first instance. ( 7. ) LEARNED counsel for the petitioner has placed his reliance in the case of Ramesh Chandra Sankla vs. Vikram Cement etc., AIR 2009 SC 713 and has taken this Court to the findings recorded by the Apex Court in paragraphs 38 to 51 and has contended that even if a writ petition is withdrawn without the liberty, the principles of constructive res judicata are applicable and in such a case a fresh petition is said to be barred. Similarly, it has been contended that if an objection could have been raised, but has not been raised at the relevant time, subsequent raising of such an objection is said to be hit by constructive res judicata, as per the law laid down by the Apex Court in the case of Barkat All and another vs. Badri Narayan (D) by L.Rs., AIR 2008 SC 1272 . Learned counsel for the petitioner has further placed the reliance in the case of Lal Chand (Dead) by L.Rs and others vs. Radha Kishan, AIR 1977 SC 784 and has contended that issues in this respect have been considered at length and the Apex Court has already held that even if the former proceedings were not, the suit, but issues have been decided even that would operate as res judicata. ( 8. ) AFTER going through all the laws pointed out by the learned counsel for the petitioner and taking note of the provisions of law, this Court is of the considered opinion that there was no error on the face of record committed by the trial Court in rejecting the application of the petitioner made under section 11 of Code of Civil Procedure. It is to be seen that in the first suit only the respondent No. 4/plaintiff had come against the sale deed said to be executed by the petitioner herein and the vendors were not the party. Now the vendors have come before the Court categorically contending that they belong to a particular caste and there is a provision prescribed under the M. P. Land Revenue Code for transfer of the land of the said caste to a person of other caste and that without obtaining any permission from the Collector,' no such transfer could have been made, yet such a transfer has been affected. Further, the first Civil Suit was not decided on merits. From the order sheets, it is clear that the same was dismissed for non-production of the evidence and instead of drawing a schedule of cost, a decree was drawn. This itself will not attract the provisions of section 11 of Code of Civil Procedure as there was no merit dismissal. Had it been a case of dismissal on account of withdrawal, it could be said that the withdrawal was because there was no material evidence available, but even that would have been applicable only with respect to the respondent No. 4/ plaintiff. The merit with respect to the claim made by respondents No. 1 to 3 in the subsequent suit was never tried. In view of this, in the considered opinion of this Court, the trial Court was just and proper in rejecting the application of the petitioner. The merit with respect to the claim made by respondents No. 1 to 3 in the subsequent suit was never tried. In view of this, in the considered opinion of this Court, the trial Court was just and proper in rejecting the application of the petitioner. The written statement has already been filed by the petitioner in the Civil Suit and it has to be tried as per the law. ( 9. ) IN the result, the revision fails and is hereby dismissed. However, looking to the controversy involved and the fact that the suit itself was filed in the year 2008, it is directed that expeditious disposal of the suit be done and the same be decided within a period of one year as far as possible from the date of communication of the order to the trial Court. There shall be no order as to costs. Revision dismissed.