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2025 DIGILAW 164 (ALL)

Kuldeep Saroha v. Chandraveer Singh

2025-02-05

ALOK MATHUR

body2025
JUDGMENT : Alok Mathur, J. 1. Heard Sri S.K. Mishra, learned counsel for petitioners as well as Sri Manish Goyal, learned Senior Counsel assisted by Sri Kunal Shah and Sri Vivek Saran, learned Standing Counsel for respondent Nos. 1 & 2. 2. This issue engaging attention of this Court in the present writ petition is an ex-parte interim injunction order dated 22.08.2024 passed by Civil Judge (Jr. Div.), Nagar Meerut in Original Suit No. 583 of 2024 (Chandraveer Singh & Anr. Vs. Kuldeep Saroha & Others). 3. The brief facts as stated by the petitioners leading to the present writ petition are that petitioners are allottees and residents of group housing society known as Ark City Colony at Kankerkheda, District Meerut which has been developed as an Apex Township constructed on Gata No. 580, 579, 581, 577, 587, 771, 775-Ka, 770, 773-B of village Naglatashi-Kashjmapur, Pargana/Tehsil & District Meerut and Gata No. 292 of Village Dayampur, Pargana / Tehsil & District Meerut. It is stated that the building plan for the said society was sanctioned on 29.01.2010. 4. It has further been stated that the respondents are bhumidhars with transferable rights of Plot No. 291 measuring area of 0.6070 hectare of land locate in Village - Dayampur, District - Meerut which have been purchased by them by means of a registered sale deed of 11.08.2016. The Ark City Housing Society is north to the disputed land of plot No. 291 owned and occupied by the respondents. 5. The dispute in the present case pertains to a 12 meter passage which runs through Ark Society which is sought to be utilized by the respondents for their ingress and egress for the said property. It has been submitted that respondents are claiming easementary of right and they had further claimed the passage relying on certain agreements entered into between predecessor-in-interest of the respondents with predecessor-in-interest of the petitioners. It is on the aforesaid basis that the respondents had filed a suit previously being Suit No. 735/2019 where the cause tittle of the said suit was: 1. Chaudhary Chandraveer Singh 2. Chaudhary Vivek Ahlawat Vs. 1. President, Ark City Resident Welfare Association 2. Secretary, Ark City Resident Welfare Association. It is on the aforesaid basis that the respondents had filed a suit previously being Suit No. 735/2019 where the cause tittle of the said suit was: 1. Chaudhary Chandraveer Singh 2. Chaudhary Vivek Ahlawat Vs. 1. President, Ark City Resident Welfare Association 2. Secretary, Ark City Resident Welfare Association. and the prayer made was with regard to grant of a permanent injunction in favour of the plaintiffs (respondents) restraining the defendants therein and their agents, officers and other anti social aliment from interfering into property situated at Gata no. 291 as well as 40 ft. road which is utilized by the plaintiffs for their ingress and egress. 6. It has been submitted that in the said suit an injunction was granted on 15.01.2020 in favour of the plaintiff/respondents restraining the petitioners from interfering for the use of 40 ft. passage. The petitioners being aggrieved by the said injunction had filed an appeal under Order 43 Rule 1(r) CPC in the court of Additional District Judge, Court No. 5, Meerut. The said appeal was allowed by means of order dated 28.02.2023 and the interim injunction granted in favour of the plaintiffs/respondents was set aside. It is in the aforesaid circumstances that the respondents had approached this Court by filing a writ petition being Matter Under Article 227 No. 4923/2023 assailing the appellate order by which the interim injunction was set aside. 7. This Court after deliberating on the entire factual aspect as well as legal issues placed before it, came to a conclusion that there was no infirmity in the appellate order dated 28.02.2023 and was of the view that the same is based on cogent reasons and deserves no interference under the facts and circumstances of the case and accordingly, the writ petition was dismissed by judgment and order dated 24.07.2023. 8. It has been submitted by learned counsel for petitioners that despite affirmation of the order of the appellate court dated 28.02.2023, the respondents instituted yet another suit in the court of Civil Judge (Jr. Div.) Meerut numbered as Original Suit No. 583 of 2024 (Chandraveer Singh & Anr. Vs. Kuldeep Saroha & Others) where the plaintiffs were the same but in the array of defendants the members of the society occupying the houses therein were arrayed as defendants. Div.) Meerut numbered as Original Suit No. 583 of 2024 (Chandraveer Singh & Anr. Vs. Kuldeep Saroha & Others) where the plaintiffs were the same but in the array of defendants the members of the society occupying the houses therein were arrayed as defendants. It has been stated that in the said suit a prayer was made with regard to same passage connecting both the disputed plots and for the order restraining the petitioners / defendants injecting them from restraining the plaintiffs from using the said land in any manner whatsoever. In the said suit, an ad interim injunction was passed on 22.08.2024 restraining the petitioners/defendants from interfering or restraining the plaintiffs/respondents in any way from using the said passageway. 9. The petitioners being aggrieved by the order dated 22.08.2024 passed in Original Suit No. 583 of 2024 (Chandraveer Singh & Anr. Vs. Kuldeep Saroha & Others) has filed present writ petition. 10. It has been submitted that the issues in the previous suits, namely, Suit No. 735 of 2019 and Suit No. 583 of 2024 are directly and substantially are same and the dispute in both the suits also pertains to the same road measuring 40 ft. / 12 meter and in both the suits the respondents have sought restraining against petitioners from not interfering for the use of the said road by the respondents. 11. It has been submitted that once the said suit has been preferred by the respondents where injunction order was initially passed in their favour and subsequently the same was vacated and the said order affirmed by this Court and also considering the fact that the suit proceedings are still pending before the trial court and there was no occasion for the respondents to have instituted a second suit for the same facts and further without disclosing the facts of filing of the first suit, an ex-parte order has been passed in favour of respondents and against the petitioners where the previous order of this Court on the same fact has not been considered and accordingly it has been submitted that there has been a miscarriage of justice requiring interference by this Court under Article 227 of Constitution of India . 12. The writ petition has been vehemently opposed by learned counsel appearing on behalf of respondents. 12. The writ petition has been vehemently opposed by learned counsel appearing on behalf of respondents. It has been submitted that present writ petition would not be maintainable inasmuch as the petitioners have efficacious alternative remedy of filing an appeal under Order 43 Rule 1(r) CPC which clearly provides for an appeal against an ex-parte injunction. It has been stated that instead of filing an appeal, the petitioners had directly approached this Court in exercise of powers under Article 227 of Constitution of India and once it has been shown that the efficacious alternative remedy is in existence then the same would be a complete bar to entertain a writ petition under Article 227 of Constitution of India . In support of this submissions, he has relied upon the case of Gurmej Singh and others Vs. Ranjit Kaur and others, 2020 (12) ADJ 561, where this Court had also considered the judgment of Hon'ble the Supreme Court in the case of A Venkatasubbiah Naidu Vs. S. Challappan and others, 2000 (7) SCC 695 . 13. It has been further submitted that as per provision of section 10 CPC there is a bar of the second suit only when the issues are directly and substantially the same. 14. It was canvassed that both the suits are identical in nature. It has been stated that if there is any differences in the facts or the grounds or the prayer made in the second suit, the bar of res sub-judice will not apply and in such a situation a second suit would be entertainable. 15. It has been submitted that words in section 10 are 'directly and substantially' in a suit which according to respondents would mean that both the suits would be identical and even in case any difference in fact or law is pointed out or distinguished of the first suit then the second suit would be entertainable. 15. It has been submitted that words in section 10 are 'directly and substantially' in a suit which according to respondents would mean that both the suits would be identical and even in case any difference in fact or law is pointed out or distinguished of the first suit then the second suit would be entertainable. He submits that while the first suit was preferred where a no objection certificate was given by the members of the society but after filing of the second suit and after passing of the order of the High court the map was sanctioned in favour of the respondents where it was shown that the passage is a common passageway for utilization of the plaintiffs as well as the defendants and accordingly it has been stated that the said fact makes a substantial difference in the case of of the respondents and therefore even the bar of Order 2 Rule 2 will not apply for entertaining the second writ petition. 16. I have heard learned counsel for parties and perused the record. 17. There is no dispute with regard to the fact that the plaintiffs in both the suits are the same persons. In the first suit the President and Secretary of the Ark Society were made as defendants who would represent the entire society for any relief sought by the plaintiffs, while in the second suit, the residents have been named in person as defendant. 18. This Court finds that there is no substantial difference in the parties and in any case the President and Secretary of the Society would represent its members who have been made parties in the subsequent suit. With regard to the nature of dispute in both the cases, it is noticed that the same is with regard to 40 ft. road which is sought by the respondents for their passage for ingress and egress inasmuch as the disputed plot which is Gata No. 291 is surrounded by boundary-wall in all sides and only passageway is though 40 ft. road which passes through the property of the Ark Society. 19. In the first suit the prayer has been made for restraining the plaintiffs therein from obstructing or interfering in the said passageway while there is no dispute that the same relief has been sought and the second suit also pertaining to the same passage. road which passes through the property of the Ark Society. 19. In the first suit the prayer has been made for restraining the plaintiffs therein from obstructing or interfering in the said passageway while there is no dispute that the same relief has been sought and the second suit also pertaining to the same passage. Once it is noticed that the parties are the same and the dispute also pertains to the same road then merely because certain developments have taken place after filing of the first suit would not entitle the plaintiffs to prefer a second suit for the same relief. 20. Prima facie when also merits of the case further perusal of the petition both the plaints, this Court finds that the dispute is identical and substantially the same for both the suits. Apart from the above, it is noticed that when an injunction was granted in suit No. 735 of 2019 the same was subject matter of challenge before the appellate court and subsequently this Court. This Court had dealt with all the issues in great detail and by means of judgment and order dated 24.07.2023 had affirmed the findings recorded by the appellate court by order dated 28.02.2023. 21. There is no dispute that the suit proceedings are still pending where it is open for the plaintiffs therein to make necessary incorporation in case in a fresh development is taken place rather than file a fresh suit and apart from above while passing the fresh order of injunction in suit No. 583/2024 the facts of the first suit was not disclosed and neither was the Presiding Judge made aware of the fact that on previous occasion the High Court had interfered in a similar injunction passed in previous suit. With regard to maintainability of the present writ petition, this Court has considered the judgement passed in the case of Gurmej Singh(Supra). It is noticed that undoubtedly this Court was of the view that wherever the ex-parte interim injunction has been passed, the aggrieved persons have efficacious remedy under Order 43 Rule 1(r) CPC . But the objection raised in the present writ petition is with regard to maintainability of a writ petition under Article 227 of the Constitutions of India against such an order. 22. But the objection raised in the present writ petition is with regard to maintainability of a writ petition under Article 227 of the Constitutions of India against such an order. 22. In this regard this Court noticed that coordinate bench of this court considered the judgment of A Venkatasubbiah Naidu(Supra) where this issue was also dealt with by the Supreme Court in paragraph No. 22 and it was held that though no hurdle can be put against the exercise of constitutional powers of the High Court, it is well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. 23. Accordingly, this Court finds that even though there is an efficacious remedy but there may be circumstances for this Court to entertain the writ petitions under Article 227 of Constitution of India . Considering the fact that in the present case on the previous occasion in the same set of foundational facts this Court had interfered and found that the interim injunction was rightly vacated this was a relevant and material aspect to have been brought to the knowledge of the trial court at the stage of passing of an ad interim injunction. Not disclosing such a fact either in the plaint or before the trial court at the stage has led to a serious miscarriage of justice and an abuse of process of law.The concealment of filing of first suit is deliberate and wilful, done only with the intention of obtaining ex-parte ad-interim injunction. Accordingly, this Court is of the considered view that the respondents have not filed the second suit bonfidely or approached the court with the clean hands. 24. In the aforesaid circumstances, this Court finds that it is a fit case for entertaining the petition under Article 227 of Constitution of India where there is an abuse of process of law by deliberately concealing the previous direction of this Court in the same matter. It was a duty of the plaintiffs to have disclosed the order passed by the High Court where on similar facts the High Court had affirmed the order of vacation of the injunction which was sought by the plaintiffs in the same terms in the second suit. 25. For the aforesaid reasons, this Court finds that present writ petition is maintainable. 25. For the aforesaid reasons, this Court finds that present writ petition is maintainable. 26. Considering that the injunction has been obtained after deliberate concealment of fact of filing of suit previously coupled with the fact that this Court had upheld the vacation of interim injunction and the impugned injunction having been passed in the teeth of the order of High Court, case for interference is made out. 27. Let a counter affidavit be filed within ten days from today. Petitioners shall have one week thereafter to file a rejoinder affidavit. 28. List this case on 03.03.2025 as fresh. 29. Till the next date of listing, order dated 22.08.2024 passed in Original Suit No. 583 of 2024 (Chandraveer Singh & Anr. Vs. Kuldeep Saroha & Others) shall remain stayed.