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2016 DIGILAW 362 (GAU)

Ranjit Kumar Saikia v. Jugal Sahu

2016-05-04

N.CHAUDHURY

body2016
JUDGMENT : 1. In this application under Article 227 of the Constitution of India the petitioners have challenged the first appellate judgment and order dated 09.09.2014 passed in Misc. Appeal No.3/2013 granting temporary injunction in favour of the plaintiff restraining the defendants from making any further construction or not alienating the property in favour of third party during pendency of the suit. The learned trial court had rejected the prayer for injunction of the plaintiff against which the aforesaid Misc. Appeal was preferred. 2. The sole opposite party as plaintiff instituted Title Suit No.8/2013 in the court of learned Munsiff No.1 at Jorhat praying, inter alia, for a decree declaring his right, title and interest over the suit land described in Schedules-A & B to the plaint and also for permanent injunction along with other prayers. Appearing in the case the defendants not only filed a written statement but also raised a counter-claim for declaring their right, title and interest etc. over the suit land. 3. The plaintiff also filed an application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure in the aforesaid suit praying for temporary injunction during pendency of the suit. The learned trial court by judgment and order dated 25.03.2013 passed in Misc. (J) Case No.7/2013 rejected the prayer. Aggrieved, the plaintiff instituted Misc. Appeal No.3/2013 before the learned First Appellate Court. It appears from the impugned judgment that in course of hearing of the appeal the defendants raised an issue that the plaintiff had instituted earlier a similar suit against the same set of defendants for declaration of their right, title and interest and that the suit was dismissed for default. Under such circumstances, subsequent suit on the same prayer was not maintainable. The learned First Appellate Court considered the same and arrived at the following finding :- “However, there is another aspect of the matter and that is the fact that the Appellant had filed a case (Title Suit No.03/11) against the O.Ps/Respondents which was dismissed for default. After perusal of the pleadings of that case and that of the present one I find that the facts are similar (Title Suit No.8/13) while the prayers are slightly different. But in order to apply res judicata the issues must have been decided finally which has not been done in TS No.3/11. After perusal of the pleadings of that case and that of the present one I find that the facts are similar (Title Suit No.8/13) while the prayers are slightly different. But in order to apply res judicata the issues must have been decided finally which has not been done in TS No.3/11. As such the contention of the Respondent that the suit is barred by law cannot be subscribed at this moment.” After making the aforesaid observation the learned First Appellate Court granted injunction in favour of the plaintiff by the impugned judgment and order dated 09.09.2014. It is this order which has been brought under challenge in the present revision petition. 4. I have heard Mr. R. Dutta, learned counsel for the petitioners and Mr. B. Banerjee, learned senior counsel assisted by Ms. C. Mazumdar, learned counsel appearing for the opposite party. I have also perused the plaint of both the suits instituted by the same plaintiff against the same defendants. 5. It appears that the earlier suit being Title Suit No.3/2011 was instituted by the plaintiff against the same set of defendants with respect to the same suit land praying, inter alia, for declaration of his right, title and interest over the suit land vis-à-vis the defendants. The aforesaid suit was dismissed for default but without filing an application for restoration thereof plaintiff filed a fresh suit being Title Suit No.8/2013 and also made a prayer for declaration of his right, title and interest vis-à-vis the same defendants with respect to the same suit land. Under such circumstances, the question of res judicata may not apply because there was no final conclusive adjudication in the earlier proceeding but the bar under Order IX Rule 9 of the Code of Civil Procedure may very much exist. The learned First Appellate Court does not appear to have applied mind in this aspect of the matter and only considered applicability of Section 11 of the Code of Civil Procedure and so the finding in regard to existence of a prima facie case has been vitiated. The learned First Appellate Court does not appear to have applied mind in this aspect of the matter and only considered applicability of Section 11 of the Code of Civil Procedure and so the finding in regard to existence of a prima facie case has been vitiated. The Hon’ble Supreme Court in the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi and others, reported in (1993)3 SCC 161 , held that the court is duty bound to consider the question of maintainability of a suit while deciding prima facie case for the purpose of adjudicating a prayer for injunction under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure. The learned First Appellate Court does not appear to have applied mind in regard thereto and so the impugned injunction order is vitiated. Accordingly, the impugned order is set aside. 6. It is needless to mention that the question as to maintainability of the suit on the face of the provision of Order IX Rule 9 of the Code of Civil Procedure is tentative and any observation made in this order shall not influence the learned trial court while deciding the main suit. The learned trial court shall consider the matter independently and thereupon shall decide the suit. The learned trial court shall endeavour to dispose of the suit as expeditiously as possible, preferably within a period of six months from today. 7. Revision petition stands allowed. No order as to cost.