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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Shriram Narayan Dhond another.... Petitioners.
Versus
Demu Surya Gaude.... Respondent.
Civil Revision Application No. 177 of 1990, decided on 3-9-1991.
Advocates appeared :
S.K. Kakodkar, Senior Advocate with R.V. Kamat, for the petitioners.
S.G. Dessai, for the respondent.
The same respondent somewhere in the year 1986 had already filed a suit against the petitioners, being Regular Civil Suit No. 35/86, also for permanent injunction with regard to the same property in which an application for temporary injunction brought by him was rejected by the Trial Judge vide order dated 6-6-86. In this order the Trial Judge expressly held that the respondent has not been able to show that be was in possession of the suit property and that no prima facie case has been. made out by him to obtain the interim relief sought for. The Judge has also clearly mentioned in the aforesaid order that "from the survey record and from the licence and from the affidavits filed by the defendants, the defendants have proved that the plaintiff is not in possession of the suit property. This finding was not challenged by the respondent since no appeal was filed by him against the dismissal of his application for temporary injunction.
Since the Trial Court had refused to grant an injunction in the respondents favour in the earlier suit of 1986 the Trial Court had obviously no jurisdiction to grant it now in 1988 with regard to the same property and in respect whereof the same Court has held that the respondent had not been able to show that he was in its possession. Admitted the earlier suit numbered 35/86 being still pending and in which the respondent was found out of possession in respect of the suit property it was not permissible for the respondent to file a fresh suit on the same subject-matter during the pendency of the earlier suit. Further if the respondent had not been able to establish his possession over the suit property in the earlier first suit and on the ground the Civil Judge had declined to grant him any interim relief it was not open for the respondent, who did not even challenge the order dated 6-6-1986 rejecting his prayer for injunction, to file in the same Court another suit on the same property and move the Trial Judge with a fresh application for a similar relief which was denied to him in the earlier suit. And if such suit was not available no temporary injunction could have been entertained by the Trial Judge on the same matter. The District Judge also clearly overlooked this simple aspect of the matter involving a jurisdiction error committed by the Trial Judge when he refused to interfere in appeal with this wrong exercise of jurisdiction assumed by the Trial Court with material irregularity.
Council of petitioner also justified when he makes a grievance against the impugned judgment which appears to have ignored the basic principles of law enunciated in Sections 10 and 11 as well as in Order 23, Rule 1 (3) of C. P. C. Section 10 ensures that no Court shall proceed with the trial or any suit in which the matter in issue also directly and substantially in issue in a previously instituted suit between the same parties or between parties under the same title. Similarly Section 11 precludes a Court to try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. In its turn Order 23, Rule 1 (3) of C. P. C. provides that a party can institute a fresh suit on the same subject-matter or on the same cause of action only after he withdraws the first suit and secures permission from the Court to file any suit. This shows that while an earlier suit is pending no fresh suit is available. The principles enshrined in Section 10 and 11 of C. P. C. although referring to suits are also applicable to interim injunctions of the strength of the principle of public policy and aiming at curtailing or putting an end to unnecessary litigation which can be adjudicated in the earlier suit. In this regard the provision of Section 151 of C. P. C. also comes into play to justify the applicability of the principle of res-judicata and in order to avoid the abuse of the process of the Court.
When the law speaks that no Court shall proceed with the trial of any Suit In which the matter in Issue is also directly and substantially in issue in a previously instituted suit between the same parties it means that in the plain language of the statute two suits on the same subject-matter or on the same cause of action cannot co-exist. It is a clear case of lis pendens which .the law forbids as a pragmatic device so as to avoid a duplication or multiplicity of proceedings and the waste of procedural energy or un-necessary loss of time of the Courts. The ultimate aim of such a principle is to secure procedural economy and the necessity of sparing effort in judicial litigation. It is in practice complemental to the principle of finality which i, sought to be achieved by Section 11 of C. P. C. when it refers to res judicata.
Based on the provided legal document, the key points are as follows:
Res Judicata and Lis Pendens Principles: The court emphasized that when a suit is pending involving the same subject matter and parties, subsequent suits or applications are barred to prevent unnecessary duplication, waste of judicial resources, and to uphold finality of judgments [judgement_subject].
Prior Suit and Finality of Orders: The earlier suit filed by the respondent in 1986, which involved a temporary injunction application that was rejected, had a final order that the respondent was not in possession of the property at that time. This order was not challenged by the respondent and thus became final, affecting subsequent proceedings (!) (!) .
Jurisdiction and Competence of Courts: The court pointed out that once a court has refused to grant an injunction or has found a party not in possession, it lacks jurisdiction to entertain a new suit or application on the same subject matter during the pendency of the earlier suit. Filing a fresh suit on the same cause of action without withdrawing the initial suit constitutes a jurisdictional error and abuse of the court process (!) (!) .
Application of Sections 10 and 11 of Civil Procedure Code: These sections prohibit courts from proceeding with trials or issues that are directly and substantially in issue in a previous suit involving the same parties or similar facts. The principles also extend to interlocutory orders like temporary injunctions, which are meant to preserve the status quo and are not final judgments (!) (!) .
Order 23, Rule 1(3) of Civil Procedure Code: The rule states that a party can institute a new suit only after withdrawing the previous one and obtaining permission. Filing a second suit without such withdrawal or permission, especially when the earlier suit is still pending, is not permissible and constitutes abuse of process (!) (!) .
Legal Presumption Based on Record of Rights: Entries in official records, such as the Record of Rights, are presumed to be true until challenged or replaced through lawful procedures. Such entries, especially those indicating possession or ownership, carry significant evidentiary weight and cannot be disturbed solely by affidavits or documentary evidence unless properly contested (!) (!) .
Possession and Title: Possession derived from entries in official records is presumed to be valid until legally challenged. A person claiming possession must also establish a valid right or title to sustain an injunction or prevent dispossession (!) (!) .
Final Judgment and Interlocutory Orders: Orders at interlocutory stages, such as temporary injunctions, do not decide the merits of the case and are subject to change based on subsequent facts or circumstances. Such orders do not operate as res judicata unless they are final judgments on the merits (!) (!) .
Legal Procedure and Due Process: The court highlighted that decisions based on documentary evidence and record entries must follow due legal procedures, and any deviation or failure to challenge prior orders within the prescribed time can lead to finality and res judicata effects (!) (!) .
Conclusion and Outcome: The court found that the subsequent suit filed by the respondent was not maintainable due to the prior final orders, the pendency of earlier suits, and the improper filing of multiple suits on the same subject matter without proper withdrawal or permission. The original judgment was set aside, and the petition was allowed (!) (!) .
These points collectively underscore the importance of adhering to procedural rules, respecting final orders, and avoiding multiplicity of suits to ensure judicial efficiency and finality.
2. Shri S.K. Kakodkar, learned Counsel for the petitioners, has submitted that the exercise undertaken by the respondent in filing Suit No. 32 of 88 was not possible under the law. The learned Counsel brought to my notice that the same respondent somewhere in the year 1986 had already filed a suit against the petitioners, being Regular Civil No. 35 of 86, also for permanent injunction with regard to the same property in which an application for temporary injunction brought by him was rejected by the learned Trial Judge vide order dated 6-6-86. In this order the learned Trial Judge expressly held that the respondent has not been able to show that he was in possession of the suit property and that no prima facie case has been made out by him to obtain the interim relief sought for. The learned Judge has also clearly mentioned in the aforesaid order that "from the survey record and from the licence and from the affidavits filed by the defendants, the defendants have proved that the plaintiff is not in possession of the suit property". This finding was not challenged by the respondent since no appeal was filed by him against the dismissal of his application for temporary injunction. The learned Counsel urged that since the Trial Court had refused to grant an injunction in the respondent's favour in the earlier suit of 1986 the Trial Court had obviously no jurisdiction to grant it now in 1988 with regard to the same property and in respect whereof the same Court has held that the respondent had not been able to show that he was in its possession.
3. There is considerable substance in the submission of Shri Kakodkar. Admittedly the earlier Suit Numbered 35 of 86 being still pending and in which the respondent was found out of possession in respect of the suit property it was not permissible for the respondent to file a fresh suit on the same subject matter during the pendency of the earlier suit. Further if the respondent hd not been able to establish his possession over the suit property in the earlier first suit and on this ground the learned Civil Judge had declined to grant him any interim relief it was not open for the respondent, who did not even challenge the order dated 6-6-1986 rejecting his prayer for injunction, to file in the same Court another suit on the same property and move the Trial Judge with a fresh application for a similar relief which was denied to him in the earlier suit. And if such suit was not available no temporary injunction could have been entertained by the learned Trial Judge on the same matter. The learned District Judge clearly overlooked this simple aspect of the matter involving a jurisdictional error committed by the learned trial Judge when he refused to interfere in appeal with this wrong exercise of jurisdiction assumed by the trial Court with material irregularity.
4. Shri Kakodkar is also justified when he makes a grievance against the impugned judgment which appears to have ignored the basic principles of law enunciatted in sections 10 and 11 as well as in Order 23, Rule 1(3) of C.P.C. Section 10 ensures that no Court shall proceed with the trial of any suit in which the matter in issue is als
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