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2017 DIGILAW 1181 (JHR)

Subhash Ch. Mahato v. Charku Mahato

2017-07-18

RAJESH SHANKAR

body2017
ORDER : Heard learned counsels for the parties. 2. The present writ petition has been filed for quashing of order dated 14.02.2007, passed by Sub-Judge, 1st, Bokaro, in Title (P) No. 26 of 2003, by reasons of which the application filed by the petitioners (defendants in the suit) under Order XIV Rule 2(2) of the Code of Civil Procedure (hereinafter referred as C.P.C.) has been rejected. 3. Learned senior counsel for the petitioners submits that the petitioners filed an application under Order XIV Rule 2(2) of C.P.C. before the learned court below for disposal of the suit on preliminary issue. The main reason for filing of the said application was that the present suit was barred by principles of res judicata, as on the same issue, earlier suit being Title (P) No. 102/87 was dismissed on merit vide order dated 13.03.2001 by the Sub Judge, Bokaro, and Title Appeal No. 13 of 2001 against the said order was also dismissed as withdrawn vide order dated 10.03.2003, passed by A.D.J.-IV, Bokaro. Moreover, the review petition was also dismissed on 19.06.2003. Learned senior counsel further submits that the learned Sub Judge, I, Bokaro rejected the application of the petitioners filed under Order XIV Rule 2(2) C.P.C. without providing sufficient opportunity to the petitioners so as to establish that the issue raised by the plaintiffs/respondents in the present suit i.e. Title (P) No. 267 of 2003 has already been adjudicated by the court in Title (P) Suit No. 102/87 between the same parties which has attained finality. However, without going into the details of the similarity of both the suits, the learned Sub Judge-I, Bokaro, vide impugned order dated 14.02.2007 rejected the application of the petitioners observing inter alia that the said application is vague. Learned trial court should have at least given opportunity to the petitioners to establish the fact agitated through the application filed under Order XIV Rule 2(2) of C.P.C. and should not have rejected the application summarily. 4. Learned trial court should have at least given opportunity to the petitioners to establish the fact agitated through the application filed under Order XIV Rule 2(2) of C.P.C. and should not have rejected the application summarily. 4. Per contra, learned counsel for the respondents submits that the learned trial court has rightly rejected the application filed by the petitioners under Order XIV Rule 2(2) of C.P.C., as the earlier suit being Title (P) No. 102/87 was not concerning the same issue for which the present suit was filed, as such the learned trial court did not find it appropriate to decide the issue of res judicata as preliminary issue in the suit. The impugned order dated 14.02.2007 being completely justified needs no interference by this Court. 5. Having heard learned counsels for both the sides and on going through the relevant records placed on record, it appears that the learned Sub Judge-1st Bokaro, vide impugned order dated 14.02.2007 rejected the application of the petitioners primarily on two grounds. Firstly, that the application filed by the petitioners under Order XIV Rule 2(2) of C.P.C. was not supported by any affidavit and secondly that the said application was vague. In my considered opinion, the learned trial court was not justified in rejecting the application of the petitioners filed under Order XIV Rule 2(2) of C.P.C. summarily. 6. So far as the first reason for rejecting the application on the ground that the application was not supported by any affidavit, was a curable defect. So far as second reason, i.e. the application of the petitioners was found to be vague by the learned trial court, it was always open for the trial court to call for the relevant records of the earlier suit i.e. Title (P) No. 102/87 and other related records so as to determine the issue as to whether the preliminary objection of res judicata raised by the petitioners was well founded or not. 7. Thus, the impugned order dated 14.02.2007 passed by Sub-Judge, 1st, Bokaro, in Title (P) No. 26 of 2003 cannot be sustained in law which is accordingly quashed and set aside. 8. 7. Thus, the impugned order dated 14.02.2007 passed by Sub-Judge, 1st, Bokaro, in Title (P) No. 26 of 2003 cannot be sustained in law which is accordingly quashed and set aside. 8. The learned Sub Judge Bokaro is directed to take up the application filed by the petitioners under Order XIV Rule 2(2) within two weeks from the date of receipt/production of the copy of the order and pass reasoned order after considering all the relevant documents for determination of the said application and if required, by calling for the records of earlier suit being Title (P) No. 102/87. The order on the said application filed under Order XIV Rule 2(2) C.P.C. shall be passed without any undue delay preferably within a period of six weeks thereafter. 9. Interim order dated 18.03.2009 is hereby vacated. 10. The writ petition is disposed of with the aforesaid observations and directions.