Back
2023 Supreme(P&H) 971
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Arun Monga, J.
Raj Kumar Asaudhiya - Petitioner - Appellant
Versus
Harish Kumar - Respondent - Respondent
CR-8347 of 2019 (O&M)
Decided On : 25-01-2023
Mr. S.R. Hooda, Advocate, For the petitioner.
None for respondent, despite service.
The main legal point established in the judgment is the application of the principle of res judicata under Section 11 of the CPC, which bars the trial of any suit or issue that has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by the court.
Headnote:
Res Judicata - Civil Suit - Section 11 of CPC - [Explanation II, Section 11 of CPC] - The court held that the matter directly and substantially in issue in the suit giving rise to the instant petition has been directly and substantially in issue in the former suit between the same parties. The judgment and decree in the previous suit is not final adjudication of the controversy. The court found that the suit of the plaintiff is barred by the principle of res judicata.
Fact of the Case:
The petitioner filed a civil suit for permanent injunction against the respondent seeking to restrain interference in the peaceful ownership and possession of the suit property. The respondent had also filed a civil suit for declaration with consequential relief of permanent injunction, which was decreed. The respondent then filed an application for dismissal of the petitioner's suit on the ground of maintainability, which was allowed by the trial court.
Finding of the Court:
The court found that the matter directly and substantially in issue in the suit giving rise to the petition had been directly and substantially in issue in the former suit between the same parties. The judgment and decree in the previous suit was not considered final adjudication of the controversy, and the suit of the petitioner was barred by the principle of res judicata.
Issues: The main issue was whether the petitioner's suit for permanent injunction was maintainable, considering the previous suit and its judgment and decree.
Ratio Decidendi: The court applied Section 11 of the Civil Procedure Code (CPC) and explained that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a court competent to try such suit and has been heard and finally decided by such court. The court found that the matter in the present suit was substantially in issue in the previously instituted suit and was finally decided by the court in the first suit, leading to the application of the principle of res judicata.
Final Decision: The petition was dismissed, but the dismissal would not prevent the petitioner from seeking appropriate remedy before the First Appellate Court where the appeal against the judgment and decree in the previous suit was pending.
ARUN MONGA, J.
Petition herein, under Article 227 of Constitution of India is for setting aside the order dated 23.09.2019 (Annexure P-4) passed by learned Civil Judge (Junior Division), Sonepat vide which application dated 14.05.2019 (Annexure P-2) filed by respondent/defendant for dismissing the suit of petitioner/plaintiff on the ground of maintainability, was allowed.
2. Civil suit was filed by petitioner/plaintiff for permanent injunction against respondent/defendant seeking to restrain him from interfering in the peaceful ownership and possession qua the suit property or putting any hurdle in construction work of plaintiff over the suit property in any manner.
3. Brief facts first, as pleaded in the revision petition.
3.1. Petitioner/plaintiff purchased a plot of 200 square yards in question for a total sale consideration of Rs.16 lakh vide registered sale deed dated 30.05.2013. Thereafter, petitioner constructed boundary wall up to the height of 5’5” around it. Respondent started interfering in the peaceful possession of the petitioner and, therefore, petitioner filed suit for permanent injunction.
3.2. Respondent also filed a civil suit for declaration with consequential relief of permanent injunction and the same was decreed vide judgment and decree dated 06.08.2018. Respondent-defendant moved an application dated 14.05.2019 for dismissing the suit on the ground of maintainability, which was later withdrawn. Thereafter respondent filed another application for dismissal of suit on the ground of maintainability on the basis of decree dated 06.08.2018 contemplating that matter in dispute is between the same parties regarding same property. Petitioner filed reply dated 18.05.2019 (Annexure P-3), but to no avail. Vide impugned order dated 23.09.2019 (Annexure P-4), learned trial Court allowed the above said application. Hence, the instant petition.
4. Learned counsel for the petitioner contends that judgment and decree passed by learned trial Court in civil suit has not attained finality as appeal against the said decree is pending before the First Appellate Court.
5. None has caused appearance on behalf of respondent, despite service.
6. I have heard learned counsel for petitioner and gone through the case file.
7. Briefly stated, the contentions herein are that the cause of action and the relief sought in both the suits are not the same and that the appeal against the judgment/decree dated 06.08.2018 in previous suit is pending adjudication before the learned Additional District Judge, which is a continuation of the suit and thus the judgment dated 06.08.2018 is not final adjudication of the controversy.
8. To my mind, there is no merit in these contentions. Under section 11 of CPC, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a court competent to try such suit and has been heard and finally decided by such court. Explanation II below the section ibid provides that for its purpose, the competence of the court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.
9. It is not disputed that the matter directly and substantially in issue in the suit giving rise to the instant petition has been directly and substantially in issue in the aforesaid former suit between the same parties. In my opinion the learned trial Court has taken a correct view of the facts and applicable law and rightly passed the impugned order, which does not call for any indulgence by this Court.
10. Order dated 23.09.2019 assailed herein is premised, inter alia, on the following reasoning:
“Plaintiff has filed this suit for restraining the defendant from interfering into the peaceful ownership and possession qua the suit property detailed in para no.1 of the plaint or putting hurdle in construction work of the suit property. The suit property has been described in para no.1 of
