Zeenathunnisa And Anr. vs Md. Abbas And Ors. on 15 December, 1995

Andhra High Court
Zeenathunnisa And Anr. vs Md. Abbas And Ors. on 15 December, 1995
Equivalent citations: 1996 (1) ALT 270
Author: S D Reddy
Bench: S D Reddy


S. Dasaradharama Reddy, J.

1. This is a revision brought by the two defendants against the order of the lower Court directing the Advocate Commissioner already appointed in earlier I.A. No. 374 of 1982 to reinspect the suit locality and file his report with the assistance of Mandal Surveyor. Earlier on the objections filed by the respondent/plaintiff on the report of the Commissioner, the lower Court directed the Commissioner to revisit the suit land. But as Commissioner’s fee was not deposited, that petition stood dismissed. The order was carried unsuccessfully in the Civil Revision Petition No. 8921 of 1987 dated 10-11-1988. The respondent filed the present I.A. again for appointment of another Commissioner. The Court below, while not granting relief for appointment of a second Commissioner, directed the Commissioner already appointed to reinspect the suit locality and to file his report with the assistance of Mandal Surveyor and to comply with all objections raised by the respondent earlier and objections, if any, to be raised by the petitioner. This order was subject to the condition of paying costs of Rs. 200/- to the petitioner.

2. The learned Counsel for the respondent raised a preliminary objection that as the Counsel for the petitioner has received costs of Rs. 200/- from the respondent, the petitioner cannot prefer the Civil Revision Petition. He has filed certified copy of the order dated 7-3-1994 showing endorsement on the docket that the costs of Rs. 200/- have been paid by the respondent to the counsel for the petitioner. He has also filed affidavit of the advocate appearing in the lower Court to the effect that costs have been paid. On the other hand, the counsel for the petitioner disputes this, and filed affidavit of the advocate appearing for the petitioner in the Court below. In view of this conflicting affidavits it is not possible to give a finding on this, unless further enquiry is made. However, it is not necessary to pursue this as the Civil Revision Petition fails on merits as can be seen below.

3. Mr. T. Niranjan Reddy, learned Counsel for the petitioner vehemently contended that in view of the earlier dismissal of the petition on the ground of non-deposit of the Commissioner’s fee, which was also confirmed by this Court in Civil Revision Petition, the respondent is barred by the principle of res judicata from seeking the same relief again. He relied on Arjun Singh v. Mohindra Kumar, , in which it was held:-

“Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable.”

It was further held:-

“Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under Order IX, Rule 7 Civil P.C. would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate Court. In that sense, the refusal of the Court to permit the defendant to “set the clock back” does not attain finality. But though the same Court is not finally bound by that order at later stages, so as to preclude its being reconsidered, and even if the rule of res judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is a rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of resjudicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of resjudicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the Court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the Court.”

This decision in fact supports the respondent.

4. The next decision is A.S.U. Sahigara v. Harachand, ,. In that case an application filed for directing the plaintiff to produce accounts books was earlier rejected by the Court and the same was confirmed by the Division Bench of the High Court. But, the defendant filed another petition for the same relief which was allowed by the trial Court. In those circumstances, Orissa High Court held that granting the same relief which has been previously rejected amounts to abuse of the process of the Court. This decision is distinguishable since in this case the respondent was successful in getting an order to direct the Commissioner to revisit the suit land, though the relief stood denied to the respondent, as a result of non-deposit of Commissioner’s fee and in the Civil Revision Petition the question was only whether the dismissal of the petition for non-payment of Commissioner’s fee was legal.

5. The next decision relied on is Ramsarup v. Praye Das, , wherein it was held that the order of the lower appellate Court allowing taking of additional evidence which was confirmed by the High Court in the revision cannot be challenged in an appeal filed against the decree. This also is of no help to the petitioner since the order passed by the trial Court earlier as well as the order passed by the High Court in revision is not in conflict with the order now passed by the trial Court on the question of directing the Commissioner to revisit the suit locality.

6. The next decision is State of U.P. v. Labh Chand, , where in it was held that where earlier writ petition was dismissed by Division Bench of High Court for not availing of alternative remedy, second writ petition on the same grounds before a Single Judge of the same High Court is not maintainable. I fail to see how this is of any relevance to the case on hand.

7. Earlier the trial Court has passed order in favour of the respondent on merits directing the Commissioner to reinspect the land. But because of failure to deposit the Commissioner’s fee that petition stood dismissed. In the revision this Court was not inclined to interfere. After all the object of the principle of res judicata is to see that conflicting decisions are not given in respect of the same matter between the same parties. Here, no doubt, technically the petition stood dismissed as a result of non-deposit of commissioner’s fee. Applying the decision of the Supreme Court in Arjun Singh v. Mohindra Kumar (1 supra), the order in the earlier I.A. has not finally decided any question in the suit. As the respondent has failed to deposit the Commissioner’s fee earlier and has filed again a petition, the Court has thought it fit to order the petition on payment of costs of Rs. 200/- to the petitioner. No principle of res judicata arises and there is no illegality in the order of the Court below.

8. Apart from this, assuming that there is any illegality, the petitioner cannot succeed as per proviso to Section 115 C.P.C. unless he establishes that there is failure of justice and he is put to any irreparable injury. No such miscarriage of Justice or injury is established in the present case. Hence, I am not inclined to interfere with the order in Revision which is accordingly dismissed, but, without costs. As the suit is of the year 1987, the Lower Court is directed to dispose it of by 31st March, 1996.

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