ORDER :- This appeal has arisen questioning the judgment and decree delivered by the Sub Judge, Pala in A.S. No. 14 of 1998.

2. Appellant as plaintiff filed O.S. No. 29 of 1997 on the file of the Munsiff's Court, Ettumenoor for a relief restraining the defendant, respondent herein, from constructing the factory for the manufacturing of cement cavity box in plaint item No. 2 of the respondent, lying on western side on the following averments. Appellant is the owner of plaint item No. 1 which is lying on the eastern side. The respondent is attempting to construct a factory for the manufacturing of cement cavity box in his property. He has left only 5 metes. If the respondent is

permitted to put up such a construction for the manufacturing of the bricks, such factory will pollute the atmosphere, would cause Asthma to the husband of the appellant and would affect the education of the students, studying in the college and such pollution would also impair the hearing of the people residing in the locality.

3. Suit was resisted by the respondent on the ground that the averments found in the plaint are totally inadmissible, only on getting report from the Factory Inspector, getting consent letters from the neighbours and members of the panchayat, report from the Panchayat Authority, etc. he applied for the licence for running the factory. The Panchayat passed a resolution and issued the licence and the objection raised by the predecessor in title of the appellant was rejected. Therefore, the letter sent by the District Medical Officer after the issuance of the licence to cancel the same is unwarranted and he has no authority to do so.

4. The trial Court, examining the contentions of both sides, dismissed the suit and that was confirmed by the learned Sub Judge in the appeal.

5. The points that were urged before this Court are : (1) Whether the finding of this Court in C.R.P. No. 2314 of 1993 will operate as res judicata in maintaining the suit?; (2) whether the suit is otherwise maintainable other than res judicata mentioned in point No. 17 and (3) whether the suit is premature in nature?

6. POINT NO. 1 : Along with the suit an interlocutory application was filed by the appellant in I.A. No. 638 of 1993 for a temporary injunction till the disposal of the suit, in which a temporary injunction order was passed. Questioning the same, the respondent filed C.M.A. No. 87 of 1993 before the District Court, Kottayam. That appeal was dismissed confirming the order passed by the trial Court in the I.A. The order passed in the C.M.A. was questioned before this Court in C.R.P. No. 2314 of 1993. This Court dismissed the revision confirming the order of the lower appellate Court. In the order, this Court, mainly relying upon the principle laid down in Saina v. Konderi, 1984 Ker LT 428 : (AIR 1984 Kerala 170), took the view that the suit is maintainable. Whether that finding in the revision will operate as res judicata is a question now raised.

7. Regarding this aspect, no doubt, a number of citations were referred to. The Madras High Court in Aboobacker v. Kunhamoo AIR 1958 Madras 287; the Himachal Pradesh High Court in Kanshi Ram v. Bansi Lal AIR 1977 Him Pra 61; the Calcutta High Court in Abhi Prosad Sen v. Puspa Doshi AIR 1984 Cal 250 and the Patna High Court in Jamutra Kuer v. Director of Consolidation, Bihar AIR 1981 Patna 92 have held that a temporary order passed under Order XXXIX CPC or any other order of such nature could not be said that the matter is finally disposed of and therefore, such an order will not operate as res judicata in a proceeding where the finality has to be arrived at a later stage. In this aspect, the Supreme Court has laid down the law in Satya Dhyan Ghosal v. Smt. Deo Rajin Debi AIR 1960 SC 941, which is as follows :

"The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matte