Ghulam Hassan Bangi vs Hamida and Another

Sunil Hali, J.—A decree for possession stand passed in favour of the present petitioner. The said decree has been passed ex-parte even

though the defendants therein had filed written statement but did not choose to appear thereafter. An execution application was filed by the present

petitioner. The non-applicants/ defendants filed an application under Order 9 Rule 13 CPC before the trial court seeking setting aside of the

decree, after a lapse of one year from the date of passing of the decree. The said application was not accompanied by the petition u/s 5 of the

Limitation Act for seeking condonation of delay in filing the said application. The trial court dismissed the application on the ground that the same

was time barred and there was no application filed for seeking condonation of delay in this behalf.

Another application for setting aside exparte decree accompanied by an application u/s 5 of the Limitation Act was filed before the trial court.

The said application was dismissed as it was hit by the principle of res judicata. The finding

recorded by the trial court is that since the matter in issue was the same which stood decided, no fresh application would lie on the same set of

cause of action.

An appeal was preferred against this order before the Principal District Judge, Srinagar who set aside the order of the trial court. The Appellate

Court held that the principles of res judicata were not applicable in the case, reasoning provided was that the application under Order 9 Rule 13

was rejected being time barred, did not deal with the grounds taken by the applicant therein for setting aside the exparte decree. The issue

regarding reasons for setting aside exparte decree has not been determined by the Court, as such, subsequent application filed for setting aside

exparte decree accompanied by the application u/s 5 of the Limitation Act was competent. It is in these circumstances present revision petition has

been filed.

The respondents have been served but despite service they are not present.

Principles of res judicata contemplate that any suit or issue which has been decided cannot be re-agitated where the matter was directly and

substantially an issue in a former suit between the same parties. It creates a bar on re-agitating or re-opening an issue which stands already

determined by the Court in any previous proceedings. The finding of the Appellate Court is based upon the principle that an issue which has not

been determined or decided by the Court can be re-agitated in any fresh proceedings and the principle of res judicata would not act as a bar.

The learned counsel for the petitioner states that explanation No. IV of Section 11 provides that any matter which might and ought to have been

made a ground of defence or attack in such former suit and if not taken, principles of res judicata would apply if any fresh suit is filed in respect of

the matter directly and materially involved in such former suit. What is contemplated is that whatever defences were available which have not been

taken by a person in the former suit on which a finding has been recorded, cannot be taken by filing a fresh suit or application taking the defence

which was available at the time of filing of the earlier suit or application. Application of the respondents was dismissed on the ground that it was

time barred. The respondents/applicants should have filed an application u/s 5 of the Limitation Act for seeking condonation of delay in filing the

application. It is only on the filing of this application along with petition an application under Order 9 Rule 13 was competent. In absence of said

application, the trial court has dismissed the application being not maintainable. By filing fresh application on the same cause accompanied by

application u/s 5 of the Limitation would act as a bar created by Section 11 as this was a right available to the applicant at the time of filing of the

said application in the former suit. It shall be deemed to have been a matter directly and substantially in issue in the said former suit.

I, therefore, allow this revision petition, set aside the order of the Appellate Court. Copy of the order along with record be send to the trial

court. Petitioner is directed to appear before the trial court on 16th of June, 2011. The trial court will issue fresh notice to the respondents.