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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Nisar Ahmad Kakru, J.
Zainab Abdullah - Appellant
Versus
State Of J&K - Respondent
OWP No. 1316/1997
Decided On : 22 October, 1998
RES JUDICATA - J&K MUNICIPAL ACT - J&K DEVELOPMENT ACT - WRIT PETITION - EASEMENT RIGHTS - BUILDING PERMISSION - DISMISSAL OF WRIT PETITION - FINALITY OF DECISION - PUBLIC POLICY - TECHNICAL RULE - FUNDAMENTAL RIGHTS - ORAL EVIDENCE - SUITS PENDING - IMPLEADMENT - CAUSE OF ACTION - DISMISSAL OF WRIT PETITION WITH COSTS.
Fact of the Case:
Petitioners challenged building permission granted to respondent No.6, alleging contravention of the Development Act and interruption of their easement rights. Respondent No.6 contended that the petitioners' father had already filed a writ petition (No. 1045/97) challenging the same permission and that the petition was dismissed. The petitioners denied knowledge of the previous writ petition and suits filed regarding the same matter.
Finding of the Court:
The court found that the petitioners had suppressed the fact of the previous writ petition and suits, which were filed in respect of the same property and permission. The court held that the decision in the previous writ petition created a bar of res judicata on the present petition. The court also noted that disputed questions of fact regarding easement rights had arisen, which required oral evidence and were more appropriately addressed in a suit rather than a writ petition.
Issues: 1. Whether the dismissal of the previous writ petition (No. 1045/97) barred the present petition under the principle of res judicata? 2. Whether the petitioners could seek enforcement of their fundamental rights despite the technical rule of res judicata? 3. Whether the court could entertain a writ petition involving disputed questions of fact requiring oral evidence?
Ratio Decidendi: 1. The court held that the principle of res judicata applied to the present petition, as the previous writ petition and the present petition involved the same property, permission, and parties. The court noted that the decision in the previous writ petition was by a competent court of jurisdiction and that the petitioners had not shown any exceptional circumstances to justify departing from the principle of res judicata. 2. The court rejected the petitioners' argument that the technical rule of res judicata could not bar them from seeking enforcement of their fundamental rights. The court held that the principle of res judicata was founded on considerations of public policy and that it was in the public interest to attach finality to decisions pronounced by competent courts. 3. The court held that it was justified in refusing to entertain the writ petition, as it raised disputed questions of fact requiring oral evidence. The court noted that such questions were more appropriately addressed in a suit, where the parties could present their evidence and the court could make a determination based on the evidence.
Final Decision: The court dismissed the writ petition along with the connected miscellaneous petitions. The interim direction granted earlier was vacated. No order was made as to costs.
2. In order to appreciate the controversy, a narrative of rival contentions is called for. The petitioners are aggrieved of building permission issued under order No: 24 of 1997 dated: 17/7/1997 on two fold grounds, one that the permission accorded contravenes the provision of Development Act, another that the construction being erected on the strength of impugned order has the effect of interrupting the easementary rights of the petitioner. The respondents No.6 has chosen to adopt the averments made by her in CMP NO: 146/1998 as her objections in terms of order of the court dated 11/05/1998 which is accompanied by a copy of writ petition bearing NO. 1045/97 which has been filed by one Mohammad Abdullah Sofi S/o Mohamad Shaban Sofi R/o Maharaj Bazar, Sarai Bal, Srinagar, respondent No.7 (herein), a copy of an order passed on 30/7/1997 in the said writ petition, two copies of plaints filed by Shri Abdul Majid Sofi S/o respondent No.7 (herein) and a photo copy of one more document. In the objections it is submitted by the respondents No.6 that the petitioners (herein) are the daughters of respondent No.7 (herein) and sisters of respondents 8 and 9 (herein). It is further contended that respondents No.7 had filed a writ petition bearing No: 1045/97 challenging the permission impugned agitating the same rights which have been taken in this petition. The said writ petition stands disposed of by virtue of order dated 01/09/1998. This fact is not disputed by L.C for the petitioner and as a matter of fact, he relies on the judgment and has produced a photocopy of the same. It being so, there is no dispute that the writ petition No. 1045/97 which has been filed by father of the petitioners (herein) stands adjudicated upon. It is also contended by respondent No.6 in his reply that similar reliefs have been prayed for in respect of the property which was the subject matter of the earlier writ petition, as well and prior to that a suit was filed before the District Judge, Srinagar, which came to be transferred to the 1st. Additional Munsiff, Srinagar and is sub-judice, in which an interim relief was granted by the trial court but was subsequently vacated and the order vacating interim relief was on appeal maintained by the Additional District Judge Srinagar, yet another suit came to be filed, praying same relief in respect of the same property. It is submitted that since interim direction was vacated in the suit, therefore, respondent No.7 chose to file a writ petition bearing No. 1045/97 but the court having declined interim relief by order dated 30/07/ 1997, the petitioners chose to file this writ petition and by share suppression they are said to have got an interim order. The petitioners have filed objections to the application of respondent No.6 and have disputed the knowledge of institution of the suits as also of the writ petition No. 1045/97, however, they have not disputed the fact that the permission impugned through this writ petition was impugned through the writ petition No. 1045/97 besides suits. The respondents No.7 has specifically contended in the writ petition No. 1045/97 that he is the proprietor of the house, in respect of which, rights of easement are claimed and this averment of respondent No.7 has been specifically mentioned by respondent No.6 in his application (treated as objections to the writ petition), but the petitioners herein have not disputed this fact.
3. What emerges from the pleadings of the parties is that the permission granted is challenged through suits and was also subject matter of a
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