Madanpal Lodhi vs Badri Parasad Lodhi

Sanjay Yadav, J.—Heard on admission.

Plaintiff vide present second appeal calls in question the judgment and decree dated 9.8.2004 passed in Civil Appeal No. 32A/2003 by Thirteenth Additional District Judge (Fast Track), Jabalpur affirming the judgment and decree dated 28.10.2002 passed in Civil Suit No. 37A/2001 by Fifteenth Civil Judge Class-II, Jabalpur.

Plaintiff brought an action for declaration and permanent injunction in respect of House bearing No. 863 that, the decree dated 20.11.1998 passed in Civil Suit No. 266A/1998 was not in respect of the room which the plaintiff got constructed with the express consent of his father, the original owner and that, the suit property was not sold to defendant vide sale deed dated 7.5.1985 who is not its owner. And that, the defendant be prohibited from interfering.

Defendant raised an objection as to maintainability of suit on the ground that the same is barred by res judicata as the issue raised has been decided earlier vide judgment and decree dated 20.11.1998 in Civil Suit No. 266A/1998.

The Trial Court on a finding that, earlier suit and the current suit being for the property bearing house No. 1462, 1463 and 1463/1 Lalmati and both being for declaration and permanent injunction and the earlier suit was decreed on 20.11.1998, an appeal; whereagainst: Civil Appeal No. 1A/1999 was dismissed on 8.2.2000 by the Ninth Additional District Judge, Jabalpur. And the order attaining finality, the trial court dismissed the suit by judgment and decree dated 28.10.2002 by recording specific finding as to identity of cause:

The appellate court affirmed the finding while dismissing the First Appeal.

Section 11, Code of Civil Procedure, 1908 stipulates that No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The principle which culls out from the provision that, the issue decided and having attained finality is not allowed to be reopened or re-agitated again. In Escorts Farms Ltd., Previously known as Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumanon Division, Nainital, U.P. and Others, , it is held:

Res judicata is a plea available in civil proceedings in accordance with Section 11 of the Code of civil Procedure It is a doctrine applied to give finality to lis in original or appellate proceedings. the doctrine in substance means that an issue or a point decided and attaining finality should not be allowed to be reopened and re-agitated twice over. The literal meaning of rex is ''everything that may form an object of rights and includes an object, subject-matter or status'' and res judicata literally means: a matter adjudged; a thing judicially acted upon or decided: a thing or matter settled by judgment.'' Section 11 of CPC engrafts this doctrine with a purpose that

"a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action." [See: Black''s Law Dictionary at pages 1304-1305]

In Bhanu Kumar Jain Vs. Archana Kumar and Another, it is held.

"30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz. Estopper By Accord."

In the case at hand there being a concurrent finding of fact that the issue in Civil Suit No. 266A/1998 being similar and the decision therein having attained finality, no substantial question of law arises for consideration.

Consequently, appeal fails and is dismissed. No costs.