ORDER :- Challenging a order, Annexure P/1 dated 3rd January 2006 passed by the Court of the Third Civil Judge, Class-II, Vidisha in civil suit No. 36-A of 2006 rejecting an application filed by the petitioner for grant of temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as CPC) on the ground that the application is not maintainable as it is hit by the principles of res judicata petitioner has filed this petition.

2. Petitioner herein has filed the suit in question for declaration of title, possession and permanent injunction with regard to a plot measuring 60 feet x 60 feet situated in Luhangi Mohalla, Vidisha. The original suit was filed by Kashi Baj who has since expired and the present petitioner is pursuing the suit as legal heir of the deceased, Kashi Bai. Initially, an application for injunction under Order XXXIX, Rules 1 and 2, CPC was filed in the suit and the respondent No. 1 filed reply to the said application. However, before orders could be passed on this application for temporary injunction, various applications were filed in the suit, and therefore, the case was adjourned from time to time for deciding the applications. Finally vide order dated 5th July 2005 (Annexure P/4), the application for temporary injunction under Order XXXIX, Rules 1 and 2, CPC filed by the petitioner was rejected on the ground that the parties have filed a series of applications, the suit is pending for more than five years, and therefore, it is better to decide the suit on merit after recording of evidence, and therefore, it is not proper to decide the application under Order XXXIX, Rules 1 and 2, CPC and the same was dismissed.

3. When this application was dismissed vide Annexure P/4 dated 5th July 2005 and when the respondent No. 1 started making certain construction in the disputed area, petitioner again moved an application for grant of temporary injunction. This application is now rejected by the impugned order and the only reason indicated by the learned Court for rejecting the application is that the earlier order passed on 5th July 2005 vide Annexure P/4 operates as res judicata, and, therefore, now no injunction can be granted. It has been held by the learned Court that as the application for temporary injunction was earlier rejected on 5th July 2005, no further application for injunction is now maintainable.

4. Shri Bhagwan Pandey, learned counsel for the petitioner argued that the earlier application for temporary injunction under Order XXXIX, Rules 1 and 2, CPC filed as Annexure P/2 on 11th December 1998 was not decided on merit. It was dismissed only on the ground of delay in the proceedings and not on merit. That being so, he argues that the principles laid down in Section 11, CPC will not apply and the learned Court has committed material irregularity in rejecting the application for injunction on such consideration.

5. Having heard learned counsel for the petitioner and on perusal of the record, the only question involved in this petition is as to whether the order passed vide Annexure P/1 dated 3rd January 2006 is proper and as to whether the principles of res judicata will apply in the facts and circumstances of the present case.

66. Under Section 11 of CPC, no Court is permitted to try any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties, or between the same parties under whom they or any of them claim, litigating and the same has been heard and finally decided in the earlier suit.

7. As indicated hereinabove, when the earlier application for temporary injunction was filed and when the order, Annexure P/4 dated 5th July 2005 was passed rejecting the same, there was no determination of the dispute involved in the matter on merit.

8. Question of applicability of res judicata to interlocutory orders was considered by the Supreme Court in the case of Arjun Singh

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