Datla Lakshmipathi Raju vs P Venkata Ramana And Others

R Raghunandan Rao, J

The petitioner had entered into an agreement of sale with the respondents, for purchase of a house, belonging to the respondents, in Visakhapatnam, by way of an agreement of sale dated 19.07.2003.

The petitioner, who was put in possession, by virtue of this agreement of sale had subsequently filed O.S.No. 320 of 2010, before the VI Additional District Judge, Visakhapatnam, for specific performance of the said agreement of sale on the ground that the respondents after having received a sum of Rs.5,50,000/- had refused to receive the balance sale consideration and execute and register the sale deed in favour of the petitioner. This suit was dismissed by the trial Court, on 03.10.2017. However, the trial Court had also directed that the respondents shall return the advance amount of Rs.5,50,000/- along with interest.

Aggrieved by this order, the petitioner had approached this Court, by way of A.S.No.326 of 2018. Along with this appeal, the petitioner had filed I.A.No.2 of 2018 seeking an injunction restraining respondents from alienating the suit schedule property. A Division Bench of this Court by an order, dated 10.04.2018, had held that the petitioner was in possession of the property.

The Division Bench, had then granted an injunction restraining the respondents from alienating the suit schedule property, subject to the condition of the petitioner depositing a sum of Rs.7,500/- per month, for occupation of the house.

Thereafter, the respondent herein had filed O.S.No.473 of 2018 before the Principal District, Visakhapatnam for eviction of the petitioner from the suit schedule property. The petitioner, moved I.A.No.735 of 2023 under Order XIV Rule 2 of C.P.C on the ground that that the suit is barred, on the principle of res-judicata and that the said issue must be tried as a preliminary issue.

The Principal District Judge held that the issue of res judicata would not arise in the present case as no issue in the suit before the Principal District Judge was either directly or substantially in issue in the earlier suit. On that basis, the Principal District Judge had dismissed the application by an order, dated 13.08.2024.

Aggrieved by the said order, the petitioner has approached this Court, by way of the present Civil Revision Petition.

Sri M. Srinivas, learned counsel for the petitioner would contend that once this Court had recognized the possession of the petitioner over the suit schedule property, there would no question of evicting the petitioner till the disposal of the appeal. He would submit that since the appeal is still subsisting, the question of evicting the petitioner would arise as the same would amount to res-judicata.

The issue before the trial Court and this Court, in the earlier suit was whether there was an agreement of sale between the parties and whether such agreement of sale should fructify into a deed of sale, transferring the property from the respondent to the petitioner. In the present case, the issue before the trial Court is whether the petitioner can be evicted from the property on account of the dismissal of the earlier suit and whether the orders of this Court, dated 10.04.2018, would bar such a relief. In the circumstances, the principle of res-judicata would not apply as there is no identity of the disputes or issues that arise in these two cases. The mere fact that the two cases are between the same parties is not sufficient to hold that the principle of res-judicata would apply.

Order XIV Rule 2 of C.P.C stipulates that all issues, raised in the suit would have to be decided either in the trial Court or the appellate Court. However, an exception was carved out from this general principle, in Rule II(3). The said exception was that the question of jurisdiction either in the form of inherent jurisdiction or in the form of a bar to a Court taking up a suit, by virtue of a bar created under law would have to be treated separately and such a question would have to be decided first before other issues could be formulated or decided.

In the present case, the petitioner sought to raise the plea of res-judicata as a bar created under law. In view of the above observations, the Court is of the view that the issue of res-judicata does not arise in the present case. However, the question of whether the petitioner can be evicted in view of the pendency of the appeal before this Court and in view of the directions of this Court dated 10.04.2018 would still remain open.

In the circumstances, this Civil Revision Petition is dismissed in terms of the above observations. There shall be no order as to costs.

As a sequel, miscellaneous petitions, if any, shall stand closed.