Dr. Madhubala vs Shishirkant & Ors

This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:

"1. यह है कि आलोच्य आदेश दिनांक 01/09/2016 प्रदर्श -8 तथा आलोच्य आदेश दिनांक 08/01/2019 प्रदर्श-10 निरस्त फरमाया जावे।

यह है कि याची द्वारा प्रस्तुत प्रार्थना-पत्र प्रदर्श -6 तथा प्रदर्श-9 स्वीकार फरमाया जावे।

यह है कि खर्चा मुकदमा वादीनी/याची को रेस्पोडेन्ट/प्रतिवादीगण से दिलाया जावे।

अन्य कोई अनुतोष जो माननीय न्यायालय प्रकरण की परिस्थितियों में वादीनी/याची के पक्ष में उचित समझे, पारित फरमावे। "

Brief facts of this case, as noticed by this Court, are that the plaintiff-petitioner filed a suit for permanent and mandatory injunction regarding an immovable property. The defendants/respondents filed the written statement alongwith the counter-claim. Thereafter, the issues were framed by the learned court below on 15.12.2015.

The plaintiff/petitioner thereafter, moved an application on 16.05.2016 for calling the report of the Forensic Science Laboratory regarding the signatures of the respondents on the particular agreement dated 03.01.2003, which was declined by the learned court below vide order dated 01.09.2016 on the ground that since the plaintiff/petitioner was only seeking an injunction and not a declaratory relief or ownership of the property in question, therefore, the FSL Report regarding the agreement in question was not required. The said order dated 01.09.2016 had attained finality, as it was not challenged before any court of law, until filing of the present writ petition.

The plaintiff/petitioner has again moved an application on 29.10.2018 seeking comparison of the signatures of the respondents on the agreement dated 03.01.2003 with the signatures admitted by the respondents on the document dated 28.10.2014/16.10.2014 in respect of Rajesh Kumar and Shishirkant. The learned court below has dismissed the said application too vide the order dated 08.01.2019 on the same grounds as contained in the earlier order dated 01.09.2016 holding that establishing the signatures of the respondents on the agreement dated 03.01.2003 by way of the aforesaid application dated 29.10.2018 is not different at all, and thus, the same reasoning as given in the earlier order dated 01.09.2016 has been applied as well in the order dated 08.01.2019.

Learned counsel for the plaintiff/petitioner submitted that the learned court below ought to have made the simple comparison between the signatures on the denied agreement dated 03.01.2003 with the accepted document dated 28.10.2014/ 16.10.2014 of the respondents for proper adjudication.

On the other hand, learned counsel for the defendants/respondents submitted that once the learned court below had dismissed the earlier application on 01.09.2016 on the ground that there was no necessity to adjudicate applicability of agreement dated 03.01.2003 as the suit in question was only for seeking injunction and not any declaratory or permanent relief including ownership of the property in question, and therefore, the same analogy stands for the current order also.

Learned counsel for the respondents relied upon the judgment rendered by the Division Bench of the Hon'ble Allahabad High Court in Rakesh Bala Aneja Vs. Sushil Bajaj & Ors., reported in 2012(4) Civil Court Cases 177 (Allahabad)(DB), relevant para 5 of which reads as under:-

"5. The Supreme Court in Y.B. Patil & Ors. VS. Y.L. Patil AIR 1977 SC 392 has held that principles of res-judicata can be invoked not only in separate subsequent proceedings; they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding."

After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court finds that the plaintiff/petitioner does not have any reason why the earlier order on the same analogy or reasoning was not challenged by the petitioner from 01.09.2016 onwards until filing of the present writ petition, and why the said order was allowed to attain finality.

This Court also finds that the learned counsel for the petitioner has also not been able to make distinction between the reasoning given in the earlier order dated 01.09.2016 and the order dated 08.01.2019. This Court further finds that the petitioner was only trying to establish signatures of the respondents on the agreement dated 03.01.2003, which prayer had already been declined by the learned court below vide order dated 01.09.2016 and again on 08.01.2019.

The impugned order dated 08.01.2019, in light of the order dated 01.09.2016, particularly with a reasoning that the suit in question was not instituted to seek any declaratory relief or ownership of the petitioner over the property in question, and therefore, the court was only required to adjudicate whether injunction is to granted or not. This Court also finds that the concept of res judicata, as in the orders dated 01.09.2016 and 08.01.2019 is clear. Thus, in the given circumstances, no interference is called for in the present writ petition.

Consequently, the present writ petition is dismissed. Stay Application No.2408/2019 also stands dismissed accordingly.