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IN THE HIGH COURT OF ALLAHABAD
D. K. SETH
SHYAMA DEVI - Appellant
Versus
7th ADDL.DISTRICT JUDGE, ALLAHABAD - Respondents
C. M. W. P. 13958 Of 1998
Decided On : 05/26/1998
RES JUDICATA - SPECIFIC RELIEF ACT, 1963 - SECTION 34 - SUIT FOR DECLARATION OF OWNERSHIP AND INJUNCTION - DISMISSAL OF EARLIER SUITS FOR SAME RELIEF - SUBSEQUENT SUIT BARRED BY RES JUDICATA - ABUSE OF PROCESS OF LAW.
Fact of the Case:
The petitioner filed a writ petition seeking to quash a suit filed by the respondent for declaration of ownership and injunction, on the ground that the suit was frivolous and patently not maintainable. The respondent had filed two earlier suits for the same relief, which were dismissed. The petitioner argued that the subsequent suit was barred by res judicata and was an abuse of process of law.
Finding of the Court:
The court found that the issues involved in the subsequent suit were the same as those in the earlier suits, and that the respondent had deliberately omitted to include a claim for declaration of ownership in the first suit. The court held that the subsequent suit was barred by res judicata and was an abuse of process of law.
Issues: Whether the subsequent suit was barred by res judicata.
Ratio Decidendi: The court held that the subsequent suit was barred by res judicata because the issues involved were the same as those in the earlier suits, and that the respondent had deliberately omitted to include a claim for declaration of ownership in the first suit. The court also held that the subsequent suit was an abuse of process of law because the respondent had been harassing the petitioner with litigation for over 30 years.
Final Decision: The court allowed the writ petition and quashed the subsequent suit.
( 1 ) IN this writ petition Mr. Ravi Kant, learned counsel for the petitioner has sought for quashing the proceeding of suit No. 23 of 1978 (Raghuraj Prasad v. Shyama Devi) pending in the Court of Additional Civil Judge, Junior Division, VIIIth Court, Allahabad on the ground that the suit is frivolous and patently it appears on the face of it is not maintainable. However, Mr. Ravi Kant very fairly conceded that this point was never taken in the Court below, on the other hand only when the application for amendment has been allowed and the revision thereout was dismissed the present application has been filed.
( 2 ) IN order to appreciate the contention of Mr. Ravi Kant, learned counsel for the petitioner, it is necessary to briefly refer to the facts of the case.
( 3 ) IT is alleged that the suit property was recorded in the name of one Ram Narain in the records of the Nagar Mahapalika. The said Ram Narain died on 24-7-1959. The name of respondent No. 3 herein was recorded in the records of Nagar Mahapalika as successor of the deceased on 23-11-1964. On 21-12-1964 the said record mutating the name respondent No. 3 was struck off and instead the name of the petitioner was mutated. Thereupon respondent No. 3 filed Original Suit No. 314 of 1966 for declaration that the order dated 21-12-1964 is null and void. The said suit was filed before the Ist Additional Munsif, Allahabad. In the judgment passed in the said suit, respondent No. 3 was found not to be a member of the family of the deceased Ram Narain. Thereafter respondent No. 3 instituted a suit No. 203 of 1971 for declaration that the plaintiff is the sole heir of Ram Narain and as such he is exclusive owner of the property and alternatively for possession. The plaint of the said suit was rejected on account of non payment of deficit Court-fee within the time fixed. No appeal was preferred against the said rejection of the plaint. Neither the said order was sought to be recalled. On 9-1-1978 suit No. 23 of 1978 was filed by the plaintiff for declaration that the plaintiff is the sole heir of late Ram Narain and Gauri Shankar and the defendant petitioner was not the heir. This suit was dismissed on 4-10-1982 being barred by Section 34 of the Specific Relief Act. An appeal was preferred by plaintiff-respondent No. 3 which was allowed on 12-10-1983 permitting the plaintiff to amend the plaint seeking further reliefs. On 11-11-1983 the plaintiff filed an application for amendments. In the meantime the petitioner had preferred an appeal before this Court against the order dated 12-10-1983 which (was) ultimately dismissed by this Court on 18-12-1996. Respondent No. 3 moved another application for amendment on 28-11-1997. A further application for amendment was filed on 2-12-1997. Another application for amendment was filed on 2-1-1998. However, by an order dated 29-1-1968 the trial Court allowed the application for amendment filed on 11-11-1983. The evidence thereout was dismissed by an order 16-3-1998 dated 16-3-1998 passed by the learned Additional District Judge, VIIIth Court, Allahabad. At this stage, the petitioner has come before this Court seeking the relief as mentioned above.
( 4 ) MR. D. N. Tyagi, learned counsel assisted by Mr. N. K. Sharma, learned counsel for respondent No. 3 opposes the said case on the ground that on merits it appears that the subsequent suit is not barred by res judicata and as such cannot be treated to be an abuse of process of law in order to attract the contention of Mr. Ravi Kant that the proceeding being an abuse of process of law on the face of it, it should be quashed. On the other hand, he contends that this is a question to be gone into by the Court below and has come to a particular finding that as to whether the suit is barred by res judicata as has been sought to be urged by Mr. Ravi Kant. He relies on various decision as to the nature and extent of res judicata and when the said principle applies and contends that on the
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