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Judgment
Krishna S Dixit, J
This petition by the defendants seeks to call in question the order dated 22.02.2024 whereby, the respondent-plaintiffs’ application in I.A.No.47 filed under Order VI Rule 17 of CPC, 1908 read with Section 22 of the Specific Relief Act, 1963, has been favoured in a pending Specific Performance Suit in O.S.No.33/2004.
Having heard the learned counsel for the parties and having perused the Petition Papers, this petition has to succeed on the short ground that plaintiffs I.A.No.45 filed under Order VI Rule 7 of CPC was allowed partly vide order dated 30.08.2017 and specifically the prayer for leave to seek refund of the earnest money was rejected. Challenge to the same in W.P.No.56505/2017 filed by the respondent-plaintiffs was disposed off has having been withdrawn on 25.10.2018, subsequently although with no objections from the petitioners herein. Once the application was rejected, the order of rejection would operate as res judicata by virtue of decision of the Apex Court in Y.B.PATIL AND OTHERS VS. Y.L.PATIL, AIR 1977 SC 392 wherein it is observed that the principle of res judicata applies also as between two stages of the same litigation, to the extent, that where a court (whether trial court or a higher court) has, at an earlier stage of the suit, decided the matter one way, the parties, cannot be allowed to reagitate the same matter at a subsequent stage of the suit.
The vehement submission of learned counsel appearing for the Respondent-plaintiffs that the earlier application i.e., I.A.No.45 was filed only under the provisions of Order VI Rule 17 of CPC and that the subsequent application i.e., I.A.No.47 is filed under Order VI Rule 17 of CPC read with section 22 of the Specific Relief Act and therefore, res judicata is not attracted, is difficult to countenance. His reliance on the decision in ARJUN SINGH vs. MOHINDRA KUMAR, AIR 1964 SCR 5, page 946, does not come to the rescue of respondents. Merely because a different provision of law is quoted in the subsequent application, the doctrine of res judicata does not stand excluded, more particularly when the provisions of Order VI Rule 17 of CPC have been duplicated in the subsequent application too.
In view of the above, this petition is allowed; a writ of certiorari issues quashing the impugned order, plaintiffs’ application in I.A.No.47 filed in O.S.No.33/2004 is hereby rejected. Since the suit is two decade old, learned trial Judge is requested to try & dispose the same within an outer limit of nine months and report compliance to the Registrar General of this Court.
However, this order would not preclude the respondent-plaintiffs from making the impugned order passed on I.A.No.45 a ground in the event they suffer an adverse judgment & decree, as provided under Order XLIII Rule 1A of amended Code of Civil Procedure, 1908.
Costs made easy.