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2022 DIGILAW 403 (CAL)

Uttam Chand Surana v. Prabir Guha

2022-03-15

BISWAJIT BASU

body2022
JUDGMENT Biswajit Basu, J. - The instant second appeal is at the instance of the plaintiffs in a suit for permanent injunction and is directed against the judgment and decree dated april 17, 2013 passed by the 2nd Court of learned additional District Judge, alipore, District 24-Parganas (South) in Title appeal No. 127 of 2012 thereby affirming the judgment and decree dated april 17, 2012 passed by the 2nd Court of learned Civil Judge (Junior Division), alipore rejecting the plaint of the said suit being Title Suit No. 87 of 2006. 2. The plaint case of the said suit in short is thus, the plaintiffs are the owners of the four-storeyed building at premises No. 208/1a Rash Behari avenue, Kolkata-700029 and the defendants are the owners of the building at premises No. 208/1B, Rash Behari avenue, Kolkata-700029 situated at the rear portion of the building of the plaintiffs, in the eastern side of the building of the plaintiffs, there is one eight feet wide passage from north to south described under Schedule 'B' appended to the plaint which is the subject-matter of the present suit. The said passage is being used by the parties for ingress and egress to their respective buildings and they have rights to take electric, telephone and water connection through the said passage. The predecessor-in-title of the defendants claiming absolute right over the said passage filed a writ petition before the High Court but the same was dismissed. The appeal from the said writ petition being a.P.O. 310 of 1999 was also dismissed, even thereafter, the defendants, are causing disturbance to the plaintiffs in their enjoyment of the said passage. The plaintiffs lodged several complaints with the local Police Station but could not prevent the defendants from disturbing the plaintiffs, hence the suit. 3. The plaintiffs in the said suit, inter alia, have prayed for a decree of permanent injunction restraining the defendants and their men and agents from keeping car in front of the garage of the plaintiffs and/or creating any sort of disturbance in the enjoyment of the Schedule 'B' property. 3. The plaintiffs in the said suit, inter alia, have prayed for a decree of permanent injunction restraining the defendants and their men and agents from keeping car in front of the garage of the plaintiffs and/or creating any sort of disturbance in the enjoyment of the Schedule 'B' property. The defendants, the respondents herein by an application under Order VII Rule 11(d) read with Order XIV Rule 2 of the Code of Civil Procedure prayed rejection of the plaint of the said suit on the ground that the character of the Schedule 'B' property and the rights of the parties therein have already been decided in the matter No. 434 of 1979, the writ petition filed by the predecessor-in-title of the defendants, therefore the suit is barred by the principle of res judicata. The learned Trial Judge allowed the said application, the appeal Court below by the impugned judgment and decree has dismissed the appeal preferred by the plaintiffs against the order of the learned Trial Judge rejecting the plaint of the said suit. 4. The Hon'ble Division Bench of this Court by the order dated March 24, 2014 had dismissed the instant appeal under Order XLI Rule 11 of the Code. The said order, however, was set aside by the Hon'ble Supreme Court vide order dated November 21, 2014 passed in Civil appeal No. 10472 of 2014 with the following observations:- 'We have gone through the pleadings and the orders passed by the trial Court as well as two appellate Courts. The order passed by the High Court, in our view, cannot be sustained. We do not wish to elaborate the grounds on which we come to such a conclusion, for the reason that the suit is at the very inception and any comment at this stage by us would have some adverse effect on the rights of one party or the other. We, therefore, set aside the impugned order, remit the matter back to the High Court for framing of appropriate questions of law and decision on such questions in accordance with law.' 5. We, therefore, set aside the impugned order, remit the matter back to the High Court for framing of appropriate questions of law and decision on such questions in accordance with law.' 5. Consequent thereupon, the appeal was again placed before the Hon'ble Division Bench under Order XLI rule 11 of the Code for admission and the appeal was admitted on September 27, 2021 on the following substantial questions of law to be answered:- 'i. Where a writ against a statutory body and private respondents is dismissed, can findings in it operate as res judicata between petitioner and private respondents in a subsequent suit? ii. Can an earlier suit by defendants, dismissed for default, bar a subsequent suit brought by plaintiffs, who were defendants in the earlier suit, under Order IX Rule 9 Code of Civil Procedure, 1908? iii. Can a suit for injunction, where there is averment in the plaint of recurring cause of action with date, on which it lastly arose, be barred by operation of article 58 in limitation act, 1963?' 6. Law is well settled that the relevant considerations in deciding an application under Order VII Rule 11 of the Code is the averments of the plaint, however, the documents referred therein can also be looked into for the said purpose. In the plaint of the present suit, there is reference of the judgment passed in the earlier writ petition filed by the predecessor-in-title of the defendants, therefore, to decide the application under Order VII Rule 11(d) of the Code, the said judgment can also be looked into. 7. The learned Trial Judge has rejected the plaint of the present suit holding that the subject-matter of the said writ petition and the present suit are almost same and identical, the right of the predecessor-in-title of the plaintiffs over the said passage has been finally settled by the Hon'ble High Court in the said writ petition, therefore, the plaintiffs cannot re-open the self-same issue over the self-same subject-matter in the present suit as the decision of the High Court in the said writ petition is binding upon the Trial Judge. The learned Trial Judge held further that the suit is also barred by limitation and under Order IX Rule 9 of the Code. 8. Mr. The learned Trial Judge held further that the suit is also barred by limitation and under Order IX Rule 9 of the Code. 8. Mr. Haradhan Banerjee learned advocate appearing on behalf of the appellants submits that to constitute res judicata the subject-matter of the former suit must be identical with that of the subsequent suit, in support of his such contention he places reliance on the decision of the Hon'ble Supreme Court in the case of KaUSHIK COOPERaTIVE BUILDING SOCIETY vs. N. PRaVaTHaMMa aND OTHERS reported in (2017) 13 SCC 138 . Mr. Banerjee further submits that the expression 'subject-matter' does not mean the property but it refers to the right in the property which the plaintiffs seek to enforce, the said expression includes the cause of action and the relevant claim therefore unless the cause of action and claim in the second suit are same as in the first suit, it cannot be said that the subject-matter of the second suit is same with that of the previous suit. Mr. Banerjee to fortify his said argument, refers to the decision of the Hon'ble Supreme Court in the case of VaLLaBH DaS vs. DR. MaDaNLaL aND OTHERS reported in aIR 1970 (SC) 987 . 9. Mrs. Sohini Chakraborty learned advocate for the respondents refuting the said argument of Mr. Banerjee submits that the character of the Schedule 'B' property and the rights of the parties therein have been finally decided in the writ petition filed by the predecessor-in-title of the defendants. She submits that in the said decision it has been held that the plaintiffs have only easement of support in the said passage which the learned advocate who represented the said predecessor-in-title of the plaintiffs in the said writ petition had categorically admitted, therefore, the plaintiffs have no scope in the present suit to re-agitate the same issue to establish their right of ingress and egress through the said passage. Mrs. Chakraborty relied on the decision of the Hon'ble Supreme Court in the case of GULaBCHaND CHHOTaLaL PaRIKH vs. STaTE OF GUJRaT reported in aIR 1965 (SC) 1153 and the case of THE STaTE OF PUNJaB vs. BUa DaS KaUSHaL reported in aIR 1971 (SC) 1676 to contend that decision in a writ petition in respect of self-same matter operates as res judicata in in a subsequent suit. Heard learned advocate for the parties, perused the materials-on-record. 10. Heard learned advocate for the parties, perused the materials-on-record. 10. The predecessor-in-title of the defendants, Smt. arati Guha in the writ petition being matter No. 434 of 1979 challenged the legality of the plan of the building in respect of the building which now belongs to the plaintiffs on the allegation that the predecessor-in-title of the plaintiffs, Smt. Bivarani Chatterjee, the respondent no. 6 to the said writ petition, had encroached upon the said passage by laying support columns of the said building under the said passage, thereby violated the building rules of the Kolkata Municipal Corporation in obtaining the sanction of the plan of the said building. The said predecessor-in-title of the defendants in the said writ petition prayed for a writ in the nature of mandamus to cancel the said building plan. 11. The defendants in their application under Order VII Rule 11(d) of the Code sought to canvass that the learned advocate for the said respondent no. 6, Mr. J. N. Roy in the said writ petition had admitted that the predecessor-in-title of the present plaintiffs has only an easement of support over the said passage and the learned Single Judge although dismissed the said writ petition but accepted the said submissions of the said learned advocate. The plaintiffs, therefore cannot maintain a suit for permanent injunction claiming that they have right to use the said passage for ingress and egress to their building. 12. The principle of res judicata is based on the need of giving finality to the judicial decisions and to constitute it, the following conditions must be proved as has been laid down by the Hon'ble Supreme Court in the case of SYED MOHD. SaLIE LaBBI(DEaD) by L.Rs and Others vs. MOHD. HaNIFa(DEaD) by L.Rs and Others reported in (1976) 4 SCC 780 : aIR 1976 (SC) 1569 :- '(i) that the litigating parties must be the same; (ii) that the subject-matter of the suit also must be identical; (iii) that the matter must be finally decided between the parties; and (iv) that the suit must be decided by a court of competent jurisdiction.' The Hon'ble Supreme Court in the decision reported in (2017) 13 SCC 138 (supra) relied on by Mr. Banerjee reiterated the said requirements of Section 11 of the Code. 13. Banerjee reiterated the said requirements of Section 11 of the Code. 13. It is therefore, necessary to take a close scrutiny of the records of the present case to ascertain as to how far the aforementioned conditions have been fulfilled in the present case. It is rightly submitted by Mrs. Chakraborty that decision in a writ petition would operate as res judicata in a subsequent suit involving the same question and for the same relief, the decisions of the Hon'ble Supreme Court cited by her reported in aIR 1965 (SC) 1153 (supra) and aIR 1971 (SC) 1676 (supra) are apposite to the said proposition of law. In this case, it is also an admitted position that the parties to the present suit are litigating under the same title of the parties to the former writ petition. Therefore, two of the abovementioned conditions are satisfied. 14. The defendants were inspired by the following observations in the judgment and order dated august 16, 1979 passed in the said writ petition to pray for the rejection of the plaint of the present suit:- '......................... Mr. J.N Roy after having drawn my attention to the above passage in halsbury's laws of England, Fourth Edition, Volume 14, referred to the various documents in the instant case. He drew my attention, in the first place, to the Deed of Gift dated the 7th February, 1947 between Phani Mohan Banerjee and his eldest daughter the respondent no. 6 affirmed on the 12th June, 1979. The Deed, inter alia, provides that the donor donates a piece of land mentioned therein ' together with all easement rights in the aforesaid 8 ft. wide common passage more particularly delineated in the said plan and thereon coloured in burnt sienna together with all water courses, lights, rights, liberties, privileges, easements, appendages and appurtenances whatsoever to the said land here ditaments and premises'. In the same Deed it is mentioned in another portion thereof as follows: 'That the Doner shall and may all times hereafter peaceably and quietly possess and enjoy the said piece or parcel of land hereditaments and premises and use the said common passage for all purpose and enjoy all sorts of easement rights over and along the same without any interruption.' On the basis of the above document, Mr. Roy argued that the gift in favour of the respondent No. 6 by her father included an easement right over the 8 common passage of all sorts in, over and along the said passage. Interestingly, it was pointed out that the plot that was gifted to the respondent no. 6 as aforesaid, was the front portion of the vacant land abutting on Rash Behari avenue. Therefore, it was submitted, that it was not necessary to confer the easement right on the common passage for ingress and egress. It was contended that the specific intention of the doner was that the easement right way be enjoyed in case the donee intended to construct a building on the vacant land and wanted an easement of support. ................. In my view, the contention of Mr. Roy is absolutely sound and should be accepted. as I have already indicated the respondent no. 6 was the donee of the front portion of the original plot which belonged to Phani Mohan Banerjee. Therefore, she did not need the common passage for the purpose of ingress and egress. The obvious intention, in my view, of conferring on the respondent no. 6 the wide easement rights of all sorts was that she should have right to the easement of support, in the event of her constructing a building on the said vacant land. I accept the contention of Mr. Roy that this is a case of acquisition of a right of easement of support of express grant.' 15. To constitute a matter res judicata, it is necessary that it must be in issue directly and substantially in the suit under trial and it must have been in issue also 'directly and substantially', as distinguished from 'collaterally or incidentally' in former suit. This condition demands that the issue in the present suit must have been 'directly and substantially' an issue in the said writ petition, any incidental finding or collateral question to arrive at a decision in the said writ petition would not fulfil the requirement of the said condition. In this context, it is profitable to quote paragraph 7 of the decision of the Hon'ble Supreme Court in the case of MaDHVI aMMa BHaWaNI aMMa aND OTHERS VS. KUNJIKUTTY PILLaI MEENaKSHI PILLaI aND OTHERS reported in (2000) 6 SCC 301 :- '7. Within the said parameter now we proceed to examine the question raised in this appeal. In this context, it is profitable to quote paragraph 7 of the decision of the Hon'ble Supreme Court in the case of MaDHVI aMMa BHaWaNI aMMa aND OTHERS VS. KUNJIKUTTY PILLaI MEENaKSHI PILLaI aND OTHERS reported in (2000) 6 SCC 301 :- '7. Within the said parameter now we proceed to examine the question raised in this appeal. The principle of res judicata as enshrined in Section 11, is evolved from the maxim 'nemo debet bis vexari pro una et eadem causa.' This principle enunciates that no man should be vexed twice over for the same cause. This principle gradually developed further by bringing within its compass more such litigations. Thus with the passage of time this principle gradually expanded. This shows that the sphere of res judicata as enshrined in Section 11 CPC is not exhaustive, it is ever growing. One such example of its growth is exhibited by the incorporation of Explanation VIII in Section 11 by means of the amending act in 1976. The submissions made are broadly under two heads: firstly under the broad and general principle of res judicata in view of Explanation VIII and secondly, whether in proceedings for the grant of succession certificate, any adjudication or issue decided therein would operate as res judicata to suit proceedings. In order to apply the general principle of res judicata the Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceedings, was it between the same parties, and was it decided by such Court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, incidentally any finding is recorded it would not come within the periphery of the principle of res judicata.(emphasis supplied)' 16. The subject-matter of challenge in the former writ petition was the validity of the building plan obtained by the predecessor-in-title of the plaintiffs for construction of the building at premises no. 208/1a Rash Bihari avenue. The ground of such challenge to the said building plan was that the said plan was obtained in violation of the building rules of the Kolkata Municipal Corporation. 208/1a Rash Bihari avenue. The ground of such challenge to the said building plan was that the said plan was obtained in violation of the building rules of the Kolkata Municipal Corporation. The learned Single Judge while deciding the said writ petition on the said issue in the judgment recorded some submissions of the learned advocate for the predecessor-in-title of the plaintiffs and gave credence to the said submissions in coming to his final decision. 17. The character of the suit passage and rights of the parties therein is the main issue to be decided in the present suit which was not an issue directly and substantially involved in the said writ petition, as such, neither the above quoted observations of the learned Single Judge in the said judgment of the said writ petition nor the submissions of the said learned advocate recorded therein can give finality to the issue to be decided in the present suit as those observations and submissions are incidental and/or collateral to the main issue decided in the said writ petition. It is relevant to mention here that in the said judgment it was also recorded that in the sale deed of the predecessor-in-title of the defendants it has been mentioned that the said sale is subject to the easement right of the predecessor-in-title of the plaintiffs over the said passage. 18. No doubt that the said judgment of the said writ petition is a piece of evidence, relevancy and evidentiary value of which can be assessed with reference to other evidences to be adduced by the parties in course of the trial of the suit but the findings and/or observations recorded therein since requires support of further evidence, the said judgment alone, does not come within the sweep of the provision of order VII Rule 11 of the code warranting rejection of the plaint of the suit under the said provision of the Code. The decision of the Hon'ble Supreme Court relied on by Mr. Banerjee reported in aIR 1970 (SC) 987 (supra) is no pointer to the issue involved in the present appeal inasmuch as in the said decision the Hon'ble Supreme Court, in the context of Order XXIII Rule 1 of the Code, has explained the meaning and purport of the phrase 'subject-matter' appearing in the body of said provision of the Code. 19. 19. The learned Trial Judge has held that the suit is barred under Order IX Rule 9 of the Code. In the application under Order VII Rule 11(d) of the Code, the defendants have referred to about one suit being Title Suit No. 385 of 1978 allegedly filed by the predecessor-in-title of the defendants, which according to the said application was ultimately dismissed in view of the order passed in the said writ petition. There is no reference of the said suit in the plaint of the present suit as such the Learned Trial Judge is not at all justified in considering the fact of dismissal of the said suit, besides the said suit not being dismissed under Rule 8 of Order IX of the Code; Rule 9 thereof has no manner of application. That apart the said suit was filed by the predecessor-in-title of the defendants of the present suit, therefore, the learned Trial Judge has committed grave error in holding that the present suit is barred under Order IX Rule 9 of the Code. 20. Both the Courts below have held that the suit is barred by limitation as it was not filed within the period of limitation prescribed under article 58 of the Limitation act, 1963, Mrs. Chakraborty although has not supported the said finding but in view of Section 3 of the Limitation act, 1963 the said finding of the Courts below is required to be addressed. The present suit is a suit for a decree of permanent injunction simplicitor, without any relief of declaration, the limitation for filing of such suit since has not been prescribed under the Limitation act 1963; the said limitation shall be governed by article 113 not by article 58 thereof. Therefore, both the Courts below have committed substantial error of law in holding that the suit is barred by limitation. In view of the discussions made above, all the substantial questions of law framed in the present Second appeal are answered in negative. The judgment and decree dated 30th april, 2013 passed by the 2nd Court of Learned additional District Judge, alipore District 24-Parganas (South) in Title appeal 127 of 2012 thereby affirming the judgment and decree dated april 17, 2012 passed by the 2nd Court of Learned Civil Judge (Junior Division), alipore, District 24-Parganas (South) in Title suit No. 87 of 2006 is set aside. S.a. 104 of 2015 is thus allowed without any order as to costs. The suit was filed in the year 2006 but still it is at a nascent stage, the learned Trial Judge, therefore, is requested to decide the said suit on merits in accordance with law as expeditiously as possible and in doing so shall not grant any unnecessary adjournments to either of the parties. CaN 02 of 2021 This is an application for mandatory injunction filed by the appellants. The appeal since has been disposed of, the application has become in fructuous and is disposed of accordingly. It is however made clear that this order will not prevent the appellants to apply for the same relief in the suit and in the event such an application is filed, the learned Trial Judge shall decide the same in accordance with law. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.