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2013 DIGILAW 1314 (MP)

Devendra Kumar Nayak v. Sudha Nayak

2013-10-29

U.C.Maheshwari

body2013
ORDER Maheshwari J. 1. The petitioners/defendants No.1 and 2 have filed this petition under Article 227 of the Constitution of India, being aggrieved by the order dated 24.9.2013 (Annexure-P-1) passed by VIth Additional District Judge, Sagar in Civil Original Suit No. 53-A/09, whereby their application filed under Order 7 Rule 14 of CPC, permitting them to produce/file the annexed documents, has been dismissed. 2. Smt. Amrit Ruprah, learned counsel appearing for the petitioners’, after taking me through the averments of the petition as well as the papers placed on the record including the impugned application filed under Order 7 Rule 14 of CPC., so also the impugned order argued that, their application has been dismissed without considering the relevancy and necessity of the annexed documents with the present matter, only on the ground that an earlier identical application filed by mentioning the provision of Order 11 Rule 14 of CPC., has already been dismissed vide order dated 21.6.2011 and such order was challenged by the present petitioners before this Court by way of writ petition No.11894/11. The same was dismissed as withdrawn at the request of the petitioners’ counsel vide order 23.7.2013 (Annexure-P-9) with liberty to file the fresh application under Order VII Rule 14 of CPC before the trial Court. In continuation she said that, in view of the principle laid down by the apex Court in the matter of Arun Singh v. Mohindra Kumar and others reported in AIR 1964 SC 993 , in the matter of Smt. Sukhrani (dead) by L.R’s and others v. Hari Shanker and others reported in AIR 1979 SC 1436 and in the matter of Kashi Bai wd/o Hiralal (dead) through L.R. Pinkal Gupta v. Sundarlal vaidh and others reported in 2007 (II) MPWN 22 = 2007 (5) M.P. High Court Today 37, filing subsequent application under the same provision is not bar even after dismissal of the earlier application. In response of some query of the Court she said that, earlier application was filed by mentioning wrong provision of CPC., i.e. under Order 11 Rule 14 of CPC. that is why such application was dismissed, but the impugned application has been filed under Order 7 Rule 14 of CPC., therefore, it ought to have been considered and allowed by the trial Court. that is why such application was dismissed, but the impugned application has been filed under Order 7 Rule 14 of CPC., therefore, it ought to have been considered and allowed by the trial Court. She also said that such documents are relevant with the matter to prove the defence of the present petitioners and if such documents are not taken on record, then the petitioners have to suffer in a lot. With these submissions, she prayed to set aside the impugned order and allow her impugned application by admitting and allowing this petition. 3. Having heard the counsel, keeping in view her arguments, I have carefully gone through the papers placed on the record along with the impugned order. 4. It is undisputed fact in the matter that same documents were filed on behalf of the petitioners before the trial Court on earlier occasion along with the application dated 3.5.2011 (Annexure-P-2) by mentioning the provision of Order 11 Rule 14 of CPC on the cause title and on consideration, such application was not dismissed only on the ground of mentioning wrong provision, but the same was dismissed on its own merit holding that the annexed documents are being filed at very belated stage while, according to nature of such documents, the same were very well in the knowledge of the petitioners prior to filing the written statement so also at the stage of settling the issues and, in any case, the same was in the knowledge of the petitioners while recording the evidence in the matter. Such order of dismissal dated 21.6.2011 (Annexure-P-8) was challenged before this Court through writ petition No.11894/11, but on listing the same for consideration before the co-ordinate Bench of this Court on dated 23.7.2013, instead to argue such petition on merits, the same was withdrawn by the petitioner’s counsel herself with liberty to file the application under Order 7 Rule 14 of CPC. before the trial Court. So, in such premises, earlier order dismissing the application has got finality between the parties. The same was not set aside by this Court in the aforesaid writ petition. Although the petitioners have filed the impugned application in the trial Court at the stage of final hearing under the liberty obtained by them from this Court in the aforesaid writ petition. The same was not set aside by this Court in the aforesaid writ petition. Although the petitioners have filed the impugned application in the trial Court at the stage of final hearing under the liberty obtained by them from this Court in the aforesaid writ petition. But in view of the settled proposition of law that the Court, who has passed the order on earlier occasion on some issue, has no authority to consider such issue at subsequent stage and pass the order contrary to such earlier order, as such earlier order is having binding effect as res judicata between the parties at two different stages before the same Court. Such principle is laid down by the apex Court in the matter of Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another reported in AIR 1960 SC 914 in which it was held as under:- “The principle of res judicate applies also as between two stages in the same litigation to this extent that a Court, whether the trial or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter gain at a subsequent stage of the same proceedings.” 5. The aforesaid principle is directly applicable to the present case so in such premises, unless the earlier order is set aside by the superior Court, the trial Court did not have any authority to reconsider the matter contrary to the earlier order and allow the petitioners’ application. So in such premises, the trial Court has not committed any error in dismissing the impugned application of the petitioners by the impugned order. 6. Even otherwise, for the sake of argument, if the case is taken up for consideration on merits again then, it is apparent that the annexed documents were very well in the knowledge of the petitioners/defendants on the date of filing the written statement and on the date of settling the issues between the parties so also at the stage of recording the evidence, but on all such occasions, the same were not filed and it is settled principle of law that if the documents were very well in the knowledge of the party since long and the same were not filed on earliest opportunity, then such party could not be permitted to file such documents. 7. 7. In view of the aforesaid elaborate discussions, the case law cited on behalf of the petitioners being distinguishable on the factual matrix of the case at hand, are not helping to the petitioners. As any of the aforesaid cited cases have not been decided taking into consideration the identical question as involved in the case at hand while, the principle laid down by the apex Court in the aforesaid cited case Satyadhyan Ghosal and others (supra) is directly applicable to the present case. 8. In view of the aforesaid discussions, I have not found any perversity, illegality, irregularity or anything against the propriety of law in the order impugned which requires any interference at this stage under Article 227 of the Constitution of India. Consequently, this petition being devoid of any merit, deserves to be and is hereby dismissed at the stage of motion hearing. 9. There shall be no order as to the costs. Smt. Amrit Ruprah for petitioner.