Dharam Vir vs Nct Of Delhi & Ors. on 19 November, 2008

i.18

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            RFA 453/2008


%                                  Date of order: 19.11.2008


       DHARAM VIR                   ..... Appellant
               Through:      Mr.Niraj Chaudhry, Adv.

                  versus

       N.C.T. OF DELHI & ORS.          ..... Respondent
                  Through



       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE J.R.MIDHA


1.     Whether reporters of local papers may be allowed
       to see the judgment?

2.     To be referred to the Reporter or not?

3.     Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.(Oral)


CM 16311/2008

             Allowed subject to just exceptions.

RFA 453/2008

1.           Heard learned counsel for the appellant.

2.           Since all relatable documents, being the plaint of

Suit No.259/2003 and the written statement filed by the

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 contesting defendants in said suit as also the judgment and

decree dated 20.3.2004 dismissing said suit; the pleadings in

the instant suit out of which the instant appeal arises have

been produced before us which have been perused by us, we

are disposing of the appeal in limine.

3.           Vide   impugned   judgment    and    decree   dated

14.8.2008 the suit filed by the appellant has been dismissed

holding the same to be an abuse of the process of Court. We

also note that the learned Trial Judge has held that the issue

raised in the suit was litigated on an earlier occasion by the

appellant resulting in the claim being dismissed vide judgment

and decree dated 20.3.2004 which has attained finality and

hence the suit is barred.

4.           Way back, in the year 1999, the appellant had filed

a suit for permanent injunction alleging that he was the owner

of 150 sq.yds. of land bearing Municipal No.IX/5249-B Old

Seelampur situated on a part of land comprised in Khasra

No.604/301 Village Seelampur. The appellant alleged that the

defendants of the suit namely Anoop Sharma, Rakesh Sharma,

Baljeet Singh, Arjun and Lakhi were obstructing the use and

occupation of the subject property by the plaintiff.

5.           Prayer made in the suit was to restrain the

defendants from dispossessing the plaintiff from the subject

property and from preventing the plaintiff from raising

RFA-453/08                                             Page 2 of 7
 constructions thereon.

6.           Anoop Sharma, Rakesh Sharma, Baljeet Singh,

Arjun and Lakhi filed a written statement alleging that the land

in question is Patwar Ghar.

7.           On the pleading of the parties following issues were

settled in the suit:-

      "(1) Whether the plaintiff is in possession of House
           No.9/5249-B Old Seelam Pur, Delhi in Khasra
           No.604/301 Seelam Pur Village, Delhi? OPP

      (2)    Whether the plaintiff has any cause of action to file
             the present suit?

      (3)    Whether the plaintiff is entitled to relief as claimed
             by him? OPP

      (4)    Relief."

8.           Parties led evidence.      Official witnesses were

summoned. Revenue record was summoned. Record of MCD

was summoned.

9.           The finding returned by the learned Trial Judge vide

judgment and decree dated 20.3.2004 was that the plaintiff

has obtained certain documents in collusion with officers of the

Municipal Corporation of Delhi. With reference to the evidence

of the Halka Patwari who was examined as DW-2, the finding

returned was that the land in question is not comprised in

Khasra No.604/301.         On the said finding the suit was

dismissed.

10.          We may note that the suit filed by the appellant in

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 the year 1999 to which we have noted herein above, on

transfer was re-assigned No.259/03 in the year 2003.

11.          Having been disarmed by virtue of the judgment

and decree dated 20.3.2004, the appellant resorted to the

stratagem of contrivance.          Very cleverly he filed the instant

suit impleading Government of NCT of Delhi as defendant

No.1, the SDM (East Delhi) as defendant No.2, Halka Patwari as

defendant     No.3,       the     Tehsildar   as     defendant     No.4,

Commissioner (MCD) as defendant No.5, the Additional Deputy

Commissioner (Land & Estate Department) MCD as defendant

No.6 and Assessor & Collector of the MCD as defendant No.7.

In the suit, the appellant claimed a relief of declaration that he

be    declared      the   owner    of   property    No.IX/5249-B     Old

Seelampur. He also sought various consequential reliefs

against the defendants.

12.          Anoop Sharma, Rakesh Sharma, Baljeet Singh,

Arjun and Lakhi learned about the strategy adopted by the

plaintiff and sought impleadment in the second suit filed by

the plaintiff. Impleadment was allowed. They were impleaded

as defendants No.8 to 12.

13.          Vide    impugned       judgment       and   decree   dated

14.8.2008, learned Trial Judge has held that the plaintiff has

resorted to abusing the judicial process by impleading

government officials as defendants by suppressing that on the

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 same issue he had fought the battle with the private

respondents, who with reference to government record

successfully non-suited the appellant.

14.           Finding   returned   is   that   the   decision   dated

20.3.2004 estoppes the plaintiff to re-agitate the issue of title

qua the property in dispute.

15.           Learned counsel for the appellant urges that the

defendants No.1 to 7 impleaded by him in the instant suit were

not defendants in the earlier suit and no relief was claimed

against the said defendants in the earlier suit.            Learned

counsel urges that the bar of res judicata requires that in the

previously instituted suit, the parties or their predecessors are

the same as in the subsequent suit.

16.           Suffice would it be to state that Section 11 of the

Code of Civil Procedure does not exhaust the principles of res

judicata and on general principles of res judicata a plea of

issue estoppel can always be urged.

17.           Where a finding of fact has been returned inter se

litigation between different parties the same can operate as an

issue estoppel in a subsequent litigation between different

parties subject to the condition that the party against whom

the plea of issue estoppel is raised was a party in the earlier

litigation.

18.           In the instant case, it has to be noted that the

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 defence of Anoop Sharma and others in the previous suit was

that the suit property was a Patwar Ghar i.e. belonged to the

Government.       They successfully established the same with

reference to the record of the Government. The said finding

thus operates as an issue estoppel and the appellant cannot

litigate on the same cause for a second time.

19.          We note that the learned Trial Judge has been

extremely lenient on the appellant by simply dismissing the

suit leaving the parties to bear their own costs.

20.          Frivolous litigation has to be dispatched with a

heavy hand.

21.          We do so.

22.          We      dismiss    the   appeal    imposing    costs      of

Rs.50,000/- (Rupees Fifty Thousand only) on the appellant for

wasting judicial time and misusing the process of law.

23.          The costs shall be deposited by the appellant with

the Delhi High Court Legal Services Committee within a period

of 4 weeks from today.

24.          Proof    thereof   would   be     furnished   before    the

Registrar (Appeals).

25.          The appeal shall be formally listed before the

Registrar (Appeals) on 19.1.2009.

26.          Learned counsel for the appellant states that he

would ensure presence of the appellant before the Registrar

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 (Appeals) on the date notified so that proof of costs being

deposited can be furnished before the Registrar (Appeals).




                                PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.
NOVEMBER 19, 2008
Dharmender

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