IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 668 of 2006()
1. ROSAMMA JEROME
... Petitioner
Vs
1. ALEXANDER
... Respondent
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent :SRI.TKM.UNNITHAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :09/12/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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C.R.P.No.668 of 2006
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Dated: 9th December, 2009
ORDER
The revision is directed against the order dismissing an
application moved by the petitioner/decree holder for proceeding
against the respondents/judgment debtors for violating a decree of
injunction. Petitioner is the plaintiff/decree holder in O.S.No.390 of
1993 in which a decree of perpetual prohibitory injunction was
granted in her favour and against the respondents/judgment debtors
from trespassing upon the plaint property having an extent of 7 cents
comprising a building. The first respondent is the brother of the
petitioner and the second respondent, the wife of the first
respondent. A decree was passed in favour of the petitioner in the
above suit on merits negativing the contention raised by the
defendants that they are in occupation of the building comprised in
the plaint property. From the decree there was no challenge by way
of appeal, and it has become final and conclusive. Alleging that after
the passing of the decree the respondents trespassed upon the
property and occupied the building, petitioner moved an application
under Order 21 Rule 32 of the Code of Civil Procedure to proceed
CRP No.668/06 – 2 –
against them for violating the injunction, and to get them evicted
from the building. That application was resisted by the respondents
canvassing the same defence taken earlier that they are continuing in
occupation of the building which commenced before the institution of
the suit. An advocate commissioner was deputed by the court for
local inspection, who after such inspection filed a report and a rough
sketch. Petitioner and an advocate commissioner were examined as
witnesses and A1, a letter issued by the District Panchayat Officer,
Alappuzha was exhibited in support of the application. On the side of
the respondents, two witnesses were examined and B1 to B3 were
exhibited. The learned Munsiff, after appreciating the materials
produced, forming an opinion that it is difficult to come to a
conclusion whether the respondents have trespassed into the
property violating the decree, dismissed the application. Propriety and
correctness of that order is challenged in the revision.
2. I heard the counsel on both sides. A preliminary objection
was canvassed by the learned counsel for the respondent to contend
that a revision would not lie against the impugned order placing
reliance on Shiv Shakti Co-operative Housing Society v. Swaraj
Developers [2003(2) KLT 503(SC)]. I find no merit in the objection.
CRP No.668/06 – 3 –
Challenge raised in the revision is against a final order passed in an
application under Order 21 Rule 32 of the Code of Civil Procedure
dismissing an application moved by the decree holder for proceeding
against the judgment debtors imputing violation of the decree of
injunction. That order is final, and amenable to a challenge before
this court by way of a revision under Section 115 of the Code of Civil
Procedure.
3. Perusing the impugned order in the revision with reference to
the submissions made by the counsel, I find the learned Munsiff has
misdirected his enquiry without taking note of the binding effect of
the decree on the parties and also the scope and ambit of Order 21
Rule 32 of the Code of Civil Procedure. Indisputably, a decree of
injunction was passed in the suit in favour of the revision
petitioner/decree holder in respect of the plaint property having an
extent of 7 cents comprising a building negativing the challenge
raised by the judgment debtors/defendants that they have occupation
over the building situated in the property. That decree passed on
merits has become final and conclusive without any challenge
whatsoever. The present petition had been filed by the decree holders
setting forth a case that there was a subsequent trespass after the
CRP No.668/06 – 4 –
passing of the decree, and occupation over the building thereof, by
the judgment debtors. That was resisted by the judgment debtors
canvassing the very same challenge advanced to resist the suit claim
in trial that they had possessory right and occupation over the
building even before its institution. In other words, the defence that
was repelled after adjudication by the court was again canvassed in
execution to resist the decree of injunction. Without examining the
question whether such a challenge could be canvassed to resist the
decree, it is seen, the court below proceeded with an enquiry to
assess the merit of that case setforth for resisting the execution of
the decree. In this connection, it is pertinent to take note of the
decision relied by the apex court in P.K.Vijayan v. Kamalakshi
Amma (AIR 1994 SC 2145) wherein it has been held that raising of
different pleas at various stages in the pendency of a suit or
proceeding itself is an abuse of process of the court and an omission
to raise all available relevant pleas at the earlier stage when the
action is initiated would constitute constructive res judicata
preventing the raising of the same at a later point of time. The apex
court has observed thus:
“It is a sheer abuse of the process of the Court to
CRP No.668/06 – 5 –
raise at each successive stages different pleas to protract
the proceedings or to driver the party to multiplicity of
proceedings. It would be fair and just that the parties to
raise all available relevant pleas in the suits or
proceedings when the action is initiated and the omission
thereof does constitute constructive res judicata to
prevent raising of the same at a later point of time
thereby it must be deemed that they are waived.”
When that be the case in respect of raising of different pleas at
successive stages in a suit or proceeding, what is seen in the present
case is the very same defence canvassed in the suit which had been
repelled after adjudication had been canvassed by the judgment
debtor to resist the decree of injunction granted in favour of the
revision petitioner/decree holder; and, after enquiry, assessing the
merit of that defence, the court below had expressed its helplessness
and difficulty “to come to a conclusion that the respondents have
trespassed into the plaint scheduled property violating the decree.”
The respondents who are bound by the decree could not have
canvassed the defence which was canvassed in trial and found
against by the court to resist the decree was lost sight of by the
CRP No.668/06 – 6 –
learned Munsiff in appreciating the facts and circumstances presented
in the case. The impugned order is patently erroneous and
unsustainable in law. Setting aside the order, the court below is
directed to pass appropriate orders on the application moved by the
revision petitioner/decree holder in accordance with law on the
materials already tendered in the proceeding, as expeditiously as
possible, at any rate, within a period of two months from the date of
receipt/production of a copy of this order.
Revision is disposed as indicated above.
srd S.S. SATHEESACHANDRAN, JUDGE