N.M. KASLIWAL, J—This miscellaneous appeal is directed against an order of the Additional District Judge, Tonk, dated 4th November, 1976 by which he set aside the judgment and decree passed by the Munsif, Tonk, dated 20th October, 1975, and has remanded the case with a direction to record evidence and then to decide the case afresh.

2. The brief facts of the case are that the respondent Ram Bux filed a suit for permanent injunction against the defendant appellants on the ground inter alia that the plaintiff had a Nohra in the village Pabadi Tehsil Newai in which he had a right of passage through the land described in the plaint. The defendants be restrained by issuing a permanent injunction not to interfere with the right of way of the plaintiff and not to make any construction. It was further prayed that whatever construction the defendants have made, may be demolished by issue of a mandatory injunction. The defendants main contention was that the plaintiff had no right of way and the land described in the plaint was the exclusive property of the defendants and as such no injunction could be issued against the defendants. It was further pleaded by the defendants that on the same ground a suit was filed by the plaintiff against the defendants in the year 1972 and the learned Munsif, Tonk by his judgment dated 22nd December, 1972, had decided all the issues against the plaintiff and had held that the plaintiff had no right of way and as such the said judgment and decree dated 22nd December, 1972, was res judicata in the present suit.

3. Learned trial Court by his judgment dated 20th October, 1975, held the present suit to be barred by the principles of res judicata and dismissed the suit. On appeal the learned Additional District Judge, Tonk, reversed the decision of the learned trial court on the point of res judicate and has remanded the case with the direction to record evidence and decide the case on merits on all the issues. In these circumstances the present appeal has been filed challenging the order of remand passed by the learned Additional District Judge, Tonk.

4. It is contended by the learned counsel for defendant-appellants that when the Munsif, Tonk, had, vide his judgment dated 22nd December, 1972, decided all the issues against the plaintiff and the said decision was between the same parties and by a competent court, was clearly res judicate between the parties and the present suit on the same cause of action was not maitainable.

5. Learned counsel for the appellants has placed reliance on Fateh Singh vs. Jagannath Baksh Singh (I), Vyankatesh Shivrram Gokhale vs. Krishan Bal Chavan (2), Sukhlal vs. Bhikhi (3) and Gangappa Gurupadappa Gugwad vs. Rachawwa (4). On the basis of the above rulings it is contended by the learned counsel that no application was filed by the plaintiff in the earlier suit under order 23 rule 1 C.P.C .for permission to withdraw that suit with liberty to file a fresh suit and after the decision of the suit on merits, no power was left in the said court to grant any permission for bringing a fresh suit. It was further contended that the court was functus officio to hold that the suit was premature after the same had been decided on merits.

6. Learned counsel appearing on behalf of the plaintiff respondent had vehemently contended that the judgment and decree of the earlier suit dated 22nd December, 1972, can by no stretch of imagination be treated to be res-judicata when there was a clear direction in the said judgment and decree that the said suit was pre-mature and the plaintiff was at liberty to file fresh suit. Strong reliance is placed on Midnapur Zamindari Go. Ltd vs. Naresh Narayan Roy (5), Shankarlal Patwari vs. Hiralal Murarka (6) and Kanduri Naik vs. Sanani Naik (7).

7. I have given my careful consideration to the arguments advanced by the learned counsel for both the parties Section 11 C.P.C. lays down the principles of res judicata according to which "No Court shall try any suit or iss

Click Here to Read the rest of this document