S. Gran Lal & Anr. v. Mord. Usman & Ors.

(1) Whether reporters oflocal paper may be allowed to see thejudgment? (2) To be referred to the reporter or not? (3) Whether thejudgmentshould be reported in the Digest?

JUDGMENT

ARUNA SURESH.J.(Oral) RSA No.106/2009

1. Notice could not be issued to the LRs ofrespondent No. 1 and respondentNo.2 asPF was notfiled. Since appellant has not been able to serve the notice as ordered and has failed to take steps, no further orders RSA 106/2009 Pagelof[7] 2010:DHC:15452 are required to be passed for service of notice ofthe appeal on LRs of respondentNo. 1 and respondentNo.2respectively.

2. Mr. Om Prakash,learned counsel appearing for the appellant has submitted that on 26"^ February 2004, the Trial Court had framed a preliminary issue regai'ding maintainability ofthe suit if it was barred by principles of resjudicata as laid down in Section 11 CPC. He has submitted thatthe First Appellate Court went wrong in remanding back the case vide impugned order dated 28^*^ March, 2009 without properly appreciating the facts of the case. He also submitted that the Appellate Court set aside the judgment and decree ofthe Trial Court and remanded back the case for trial holding that the question of resjudicata was not a pure question oflaw but was a mixed question oflaw and fact. Therefore, according to him, a substantial question of law whether question of res judicata is a pure question oflaw or is a mixed question oflaw and fact is required to be formulated and adjudicated upon in this appeal.

3. I find no merits in the submissions ofthe learned counsel for the appellant.

4. Respondent herein filed a suit for injunction bearing No.766/75 against the appellant claiming himselfto be the owner ofpucca RSA 106/2009 Page2of[7] shed bearing Municipal No.5409/A, New Market, Sadar Bazar, Delhi-6. The said suit was filed against Abdul Malik and Chanda Ram and his two sons, namely, Sohan Lai i.e. the Appellant herein and Jagga on the allegations that the appellants were blocking the doors on Eastem and Northern sides of the shed of the respondent. The said suit was partly decreed on 18^^ July, 1979 restraining the appellants from blocking the doors marked as AB and CD on Northem side ofthe shed. However, the relieffor the Eastem side ofthe shed was dechned. Appeal against the said judgment and decree fifed by the respondent was also dismissed on 3'^ September, 1998. Respondent also filed a Regular Civil Appeal bearing No.8/99 against thejudgment and decree ofthe Appellate Court. The said appeal was also dismissed.

5. Respondent thereafter filed a suit bearing No.986/99 (in which the impugned orders have been passed and is being referred to as second suit). In the second suit, respondent has impleaded various authorities like MCD,DDA,DESU and Commissioner ofPolice as other defendants beside the appellants. The reliefclaimed in this suit was in the form ofa permanent injunction for restraining the appellants from carrying on anytrade on the passage/street adjoining Eastern side ofthe shed bearing No.5409-A and further by way of a mandatory injunction to remove the RSA 106/2009 Page3of[7] a boxestarpaulins and ail other goods stocked on the side ofEastern wall and certain reliefs were claimed againstthe statutory authorities.

6. The Trial Courtframed following preliminary issue;-

7. Trial Court treated this issue as a question of law and proceeded to decide the same. It came to the conclusion thatthe second suit was barred by principles of res judicata and dismissed the same accordingly. Appellate Court did not agree with the findings ofthe Trial Court and observed that the question ofresjudicata was a mixed question oflaw and fact. The relevant observations ofthe Appellate Court made in the impugned order are contained in paragraphs 18 to 21, which read as foliows:- "18. On consideration of the pleadings of the two suits, it cannot be said that matter in issue in the two suits was apparently identical. On such a situation at the best what the trial court ought to have done was to frame a issue of resjudicata if necessary for decision and decide the same at the time offinal disposal alongwith the other issues after giving liberty to the parties to adduce their respective evidence. The question ofresjudicata on the given facts ofthe RSA 106/2009 Page4of[7] case was not a pure a question oflaw but was a mixed question offacts and law.

19. On consideration of the facts in the two suits,it may be noted that the facts stated in the second suit were prima facie making a new cause of action. The trial court while passing the impugned order seems to have totally ignored the facts under which the relief against the Eastern side of the wall as claimed in the former suit came to be decided against the appellant in that suit. The alleged incident of putting boxes and tarpaulins on a subsequent date after the alleged removal ofearth are prima facie sufficientfor giving afresh cause ofaction ^ tothe appellanttofileafreshsuitforinjunction.

20. The trial court in the present case should have taken the note of WS filed on behalf of MCD wherein it was stated that defendant no.l and 2 had encroached upon the Municipal land being a passage and the MCD would take action againstthem.Then atthesametime the reliefin the present suit was not only against the private parties but was also sought againstthe Statutory Authorities too for not taking action against the respondent no.l and 2 for the alleged illegal encroachment made by them in the passage. So this way the relief as sought was also quite different in the two suits. In such facts and situation to deal with the question ofresjudicata • as preliminary issue was least desirable.

21. On a apparent consideration ofthe two suits, it may be noted that the matter in issue in the second suit was relating to the alleged acts of the respondent no.l and 2ofthe year 1991 only and alleged inaction on the part ofthe Statutory Authorities which had given a new cause of action to the appellant to file the second suit. The alleged cause ofaction arose to appellantin RSA 106/2009 Page5of[7] the second suit when the respondent no.] and 2 allegedly raised construction on the Eastern side of &e shed of the appellant which as per the record of the first suit was having malba. In view of this alleged development, it cannot be said that it does not give any cause ofaction if the appellant feels aggrieved from such alleged action ofrespondents."

8. To my mind,the Appellate Court was rightin its observations when it concluded that the question ofresjudicata, on the given facts of the case,based on subsequent events was a mixed question oflaw and fact. The cause of action, as alleged in the second suit, is based on subsequent ' events and the second suithas also been filed againstvarious authorities of the Government, beside the appellants. Whether a question ofresjudicata is a mixed question oflaw and fact or a pure question oflaw is based on the facts and circumstances ofeach case.