AI Structured Summary
Not yet generated for this judgment
Judgment
This Revision Petition is directed against the order in IA No.179 of 1997 in OS No.168 of 1983 on the file of Principal Junior Civil Judge, Vizianagaram dated 4-2-1998 appointing an Advocate Commissioner for localisation of the plaint schedule property with the assistance of a qualified Mandal Surveyor. Plaintiff No.l in the suit is the Revision Petitioner and Plaintiff No.2 is impleaded as 3rd Respondent in this revision.
The Respondent Nos.l and 2 herein, who are the defendants in the suit filed the above petition under Order XXVI, Rules 9 and 10, read with Section 151 of the CPC seeking appointment of Advocate-Commissioner to localise the plaint schedule property and to draw a plan with the assistance of a licensed Surveyor. It is stated in the affidavit of Respondent No.l herein that he had filed a similar petition earlier and the same was dismissed. But, he is of the opinion that there is any amount of necessity for appointment of an Advocate-Commissioner with reference to the sale deeds filed by the revision petitioner/plaintiff, as otherwise it is not possible to the trial Court to come to a just finding. The Revision Petitioner resisted the petition on the ground that the order in the earlier petition operates as res judicata and hence the petition is liable to be I dismissed.
The learned principal Junior Civil Judge, Vizianagaram considered the rival contentions and held that the earlier order does not operate as rex judicata. It is further held that the appointment of Advocate-Commissioner is in no way prejudicial to the revision petitioner/plaintiff and that it is essential to appoint an Advocate-Commissioner. Accordingly, the petition has been allowed and one Sri. Y. Narayana Murthy, advocate has been appointed as Commissioner to localise the plaint schedule property with the assistance of a qualified Mandal Surveyor and also to prepare a plan with the help of F.M.B. It is this order that is assailed in this revision.
The facts in brief are that the revision petitioner and respondent No.3 herein filed OS No.168 of 1983 for declaration of their title and also for permanent injunction restraining the respondents 1 and 2 herein from interfering with the possession and enjoyment of the plaint schedule property. Their case is that they purchased the plaint schedule property together with the vacant site from one Koppala Narayanamma under registered sale deeds dated 5-6-1965 and 4-2-1963. Subsequently, a terraced house was constructed by the revision petitioner and some time later a titled house was also constructed leaving a lane measuring about 6ft. in width and 100 ft. in length. It is their case that the above lane is exclusively meant for discharge of rain and sullagc water from their houses. Respondents 1 and 2 resisted the suit by filing a written statement. It is averred in Para 6 of the written statement that they (respondents 1 and 2) have nothing to do with the plaint schedule property and the vacant site described in the plaint schedule and that they have been unnecessarily impleaded in the above suit. It is further averred in Para 7 of the written statement that the vacant site of 6 ft. width belonged to Koppala Narayanamma, the originalowner and the plaintiffs have nothing to do with that site.
Both the parties adduced evidence in support of their rival contentions. The learned Principal Junior Civil Judge decreed the suit. The respondents 1 and 2 preferred an appeal against the said judgment and decree. The learned District Judge, however, set aside the judgment and remanded the matter to the trial Court for fresh disposal. It is to be re-called that during the pendency of the suit before the trial Court, respondents-defendant Nos.1 and 2 filed a similar petition seeking an appointment of an Advocate-Commissioner for the same purpose and that petition was dismissed on merits. That order had become final as no revision was filed against the same. Subsequent to the remand the present petition is filed and it has been resisted by the revision petitioner on the ground that it is barred by res judicata. The learned Principal Junior Civil Judge repelled the above objection and held that an order in Interlocutory Application does not operate as res judicata.
The Short question that falls for consideration is whether an order in an Interlcutory Application operates as res judicata.
Sri K. Subrahmanyam, learned Counsel for the petitioner firstly contended that the impugned order is illegal as the earlier order of dismissal of a similar petition operates as res judicata and secondly that there are no merits in the petition. It is further contended that there are specific averments regarding the description of the plaint schedule property and a map also has been appended to the plaint; whereas respondents 1 and 2 did not challenge the description of the above property and on the contrary in Paras 6 and 7 of their written statement they have specifically averred that they have nothing to do with the plaint schedule property. It is however,their ptea is that open site (reference to suit site) belongs to the original owner K. Narayanamma. Sri Subrahmanyam, therefore, contended that there is absolutely no necessity to appoint an Advocate- . Commissioner for localisation of the plaint schedule property inasmuch as there is no dispute as to the identity of the property.
Respondent Nos.l to 3 have been served with notices and proof of service has been filed. It is seen that they have not entered their appearance in this Court.
The question whether an order in IA operates as res judicata or not is no longer res integra. In Arjun Singh Vs. Mohindra Kumar and Others, , the Supreme Court considered various kinds of interlocutory orders and classified the same into two categories and insofar as one category of interlocutory application is made for a relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court. It would be beneficial to extract the relevant passage.
"Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varid by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigationthe principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or the preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under Order IX, Rule 7 CPC would be an illustration of this type. If an application made under the provisions of mat rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate Court. In that sense, the refusal of the Court to permit the defendant to "set the clock back" does not attain finally. But though the same Court is not finally bound by that order at later stages, so as to preclude its being reconsidered, and even if the rule of res judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on theprinciple of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the Court would be competent, may would be bound to take those into account and make an order conformably to the facts freshly brought before the Court."
It is evident from the above judgment that on fresh facts, the Court would be competent to make a fresh order, but, otherwise the earlier order would operate as a bar.
As against the above settled proposition the learned Junior Civil Judge relied on The United Provinces Electric Supply Co. Ltd., Allahabad Vs. Their Workmen, . That was a case where a Constitution Bench of the Supreme Court considered the scheme and object of Industrial Employment (Standing Orders) Act, 1946 and in the course of judgment the question of the effect of interlocutory judgments which have the force of a decree viz., interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree came up for consideration and it has been held that interlocutory judgments which are only a step towards the decision of the dispute do not operate as res judicata. Itis not as though the Hon''ble Supreme Court considered the question whether an order in an Interlocutory Application in a suit operates as res judicata or not. The learned Junior Civil Judge landed himself in an error in applying the principle laid down by the Supreme Court in the above case. On the contrary I have no hesitation to hold that the earlier order in a similar Interlocutory Application namely IA No.1 27 of 1991 filed on same facts seeking same relief is a bar to the present IA No. 179 of 1997. The point is answered accordingly.
Then the larger question is whether there is any necessity to appoint an Advocate-Commissioner for localisation of the plaint schedule property. The learned Counsel furnished copies of plaint as well as written statement and I have the benefit of perusing the same in order to see whether there is any dispute as to the identity of the plaint schedule property. It is rightly pointed out by Sri Subrahmanyam that in Paras 6 and 7 of the written statement the contesting defendants (respondent Nos.1 and 2 herein) have not raised any dispute to the identity of the properly and on the other hand they have categorically averred that they have nothing to do with the plaint schedule property and that it belongs to the original owner K. Narayanamma. In such circumstances, I fail to understand as to why there is any need for appointment of an Advocate-Commissioner for localisation of the plaint schedule property. Viewing from any angle the impugned order is not sustainable and hence the CRP is fit to be allowed.
In the result, the Civil Revision Petition is allowed and the impugned order in IA No.179 of 1997 in OS No.168 of 1998 dated 4-2-1988 is set aside. There is no order as to costs.
The learned Principal Junior Civil Judge is directed to take-up the suit anddispose of the same as expeditiously as possible preferably within a period of three months from the date of receipt of the order as it is an old suit.