RSA No. 4176 of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM No. 8539-C of 2001and
RSA No.4176 of 2001
Date of Decision: January 07, 2009
Arun Kumar and others ...... Appellants
Versus
Lal Chand and others ...... Respondents
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr.M.L.Sarin, Senior Advocate with
Mr.Jaspal Singh, Advocate
for the appellants.
Mr.O.P.Goyal, Senior Advocate with
Ms.Priya Khurana,Advocate
for the respondents.
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.
This appeal has been filed against the concurrent judgments of
the Courts below decreeing the suit of the respondents for mandatory
injunction directing the appellants to remove the alleged encroachment
made by them over a portion of the public street, to remove the alleged
illegal and wrongful projection built by the appellants and to remove the
structures raised on the allegedly exclusive wall of the respondents.
Learned counsel for the appellants has raised four arguments.
RSA No. 4176 of 2001 2
His first argument is that the construction was made after getting the site
plan sanctioned from the Municipal Committee and that, therefore, it does
not lie in the mouth of the respondents to allege encroachments on
municipal land. His second argument is that admittedly his building is
behind the municipal drain. This fact also mitilates against the finding of
encroachment. His third argument is that the suit of the respondent is
barred by res judicata since the predecessor-in-interest of the respondents
had filed a similar suit which was dismissed in default and thus the present
suit was not maintainable. His fourth argument is that the suit was time
barred because admittedly the shop in dispute was constructed in the year
1987 while the present suit was filed in the year 1992.
As far as the first two arguments are concerned, in my opinion
the same are questions of fact. There is also an application for additional
evidence to place on record certain photographs. I find that the same does
not satisfy the stringent requirements of Order 41 Rule 27 of the CPC.
With regard to the question of res judicata learned counsel for
the appellants has relied upon Amir Din Shahab Din v. Shiv Dev Singh
Jhanda Singh reported as AIR (34) 1947 Lahore 102 while learned counsel
for the respondents has relied upon Ranjit Singh v. Gurnam Singh and
another reported as 1999(1) Indian Civil Cases 148, Ranveer Singh v.
The District Judge, Tehri Garhwal and others reported as 1999(1) Rent
Law Reporter 56, Salwant Singh and others v. Surinder Singh and
others reported as 1997 (Suppl.) Civil Court Cases 363 (P&H) and Piar
Singh v. Sarju Singh and Another reported as 2000(2) Civil Court Cases
522.
In Amir Din Shahab Din’s case (supra) a second suit was filed
RSA No. 4176 of 2001 3
during the pendency of the first and a Division Bench held as follows:-
“Their appeal was heard in the first instance by a learned Single
Judge of this Court who, in view of the difficulty of the
question of law involved, referred the case to a Division Bench.
In so far as the view of the learned Senior Sub Judge as to the
operation of the bar created by O.9 R. 9, being confined merely
to a suit instituted in respect of the same cause of action after
the dismissal under O.9 R. 8, of the first suit is concerned, it is
perfectly sound and well-founded and indeed the learned
counsel for the appellants did not make any attempt to find fault
with it. That, however, does not mean that the present suit is
not barred otherwise and can be tried on the merits. Although
the present suit cannot be dismissed as barred under O.9 R. 9,
in my judgment it is certainly liable to be dismissed as
offending against the well known maxim that no one shall be
twice vexed with one and the same cause, and on the ground of
its institution and trial amounting to an abuse of the process of
the Court. The maxim of law prohibiting a defendant being
twice vexed with the same cause is very well recognised and
forms the foundation of the rules of law embodied in O.2 R. 1
and O.2 R. 2 Civil P.C.”
In the present case admittedly predecessor-in-interest of the
respondents filed a similar suit against the appellants which was Ex.D2.
The appellants filed written statement Ex.D3 and Ex.D4 and the suit was
dismissed under Order 9 Rule 8 CPC by order Ex.D5. A perusal of Ex.D2
and Ex.D5 reveals that the relief claimed was similar to that as has been
sought in the present case.
In the case of Ranit Singh (supra) this Court had held that
even if once a suit for prohibitory injunction with regard to forcible
dispossession was rejected under Order 9 Rule 8 CPC, a second suit would
not be barred in case a similar threat comes subsequently.
RSA No. 4176 of 2001 4
In the case of Ranveer Singh (supra) Justice D.K.Seth of the
Allahbad High Court (as his Lordship then was) held that a second
application under Section 4 of the U.P.Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 was held to be maintainable after the
dismissal of a similar application in default since as per his Lordship the
CPC as such was not applicable to the proceedings under the said Act.
The case of Piar Singh (supra) merely enumerates the various
ingredients for the applicability of the provisions of Order 2 Rule 2 CPC
and held that the earlier suit was based on tenancy rights whereas the
subsequent suit was based on adverse possession.
In the case of Salwant Singh and others (supra) it was laid
down that in order to successfully raise a plea of res judicata it was
necessary to place on record the copies of the pleadings and the judgment
and that since the same were not placed on the record of the case the finding
of res judicata could not be successfully established.
In my opinion the case in hand would be covered by the
judgment of the Lahore High Court in Amir Din Shahab Din’s case
(supra). In the case of Ranjit Singh (supra) what was being sought was
prohibitory injunction and this Court had held the second suit to be
maintainable on the ground of existence of fresh threat. Such is not the case
here. In Ranveer Singh’s case (supra) it was held that the provisions of
the CPC were not applicable. In the case of Piar Singh (supra) the two
suits proceeded on two different grounds altogether while, as far as the case
of Salwant Singh (supra) is concerned, it was held as incumbent to
produce on record the copies of the pleadings. In the present case the
pleadings of the previous suit have been placed on record as Ex.D2 to
RSA No. 4176 of 2001 5
Ex.D5. The argument of learned counsel for the respondents that the
previous suit was allowed to be dismissed in default by the predecessor
since he had sold the property in dispute to the respondents would not help
them get over the bar of Order 9 Rule 9 CPC. There was no embargo of the
respondents in getting the earlier suit revived since they had stepped into
the shoes of their seller. I thus hold that the present suit was barred under
the provisions of Order 9 Rule 9 C.P.C.
As regards limitation learned counsel for the respondents has
urged ( and rightly so in my opinion) that the present suit would not be
covered under Article 113 but would be covered under Article 111. On this
issue also the findings of the Courts below are affirmed.
In the result this appeal is allowed on the ground that the
present suit was barred under the provisions of Order 9 Rule 9 C.P.C.
(AJAY TEWARI)
JUDGE
January 07, 2009
sunita