Munna Verma vs Bhageshwari Bai Verma and others

U.C. Maheshwari, J.

Shri R.K. Tiwari, Learned Counsel for the Appellant. Shri A.G. Dhandey, learned Senior Advocate assisted by Shri Sudeep Chatterji, Learned Counsel for respondent No. 2. Heard on the question of admission.

This appeal is preferred against the order dated 13-7-2004 whereby an application filed by the Appellant/plaintiff under Order 9 Rule 9 of CPC for restoration of the suit has been dismissed by the trial Court.

Having heard the Learned Counsel for the Appellant on admission, on perusing the documents placed on the record by the Appellant and averments made in this appeal, it is apparent that earlier a Civil Original Suit was filed by the Appellant against the respondents in which the respondent has also filed a counter-claim but due to non-payment of requisite court fees considering the provisions of Order 7 Rule 11, CPC and Section 35 of Stamp Act the Appellant''s suit was dismissed by the trial Court vide order dated 13-9-2002 but the counter-claim was remained continue for trial. The order dated 13-9-2002 was challenged before this Court in Civil Revision No. 1494/02 which was dismissed vide order dated 4-7-2003.

During pendency of aforesaid Civil Revision an application under Order 9, Rule 9 of CPC was preferred by the Appellant in the trial Court for restoration of the suit, such application was dismissed vide order dated 7-4-2003 against which a Civil Revision No. 544/03 was also preferred by the Appellant in this Court but the same was withdrawn on 11-8-2003 with liberty to initiate appropriate proceedings. Thereafter again an application under Order 9, Rule 9 of CPC was filed before the trial Court. On consideration this application was dismissed by the impugned order on the ground that in view of earlier order of dismissal such subsequent application could not be entertained. In addition to it, it was also held that order regarding dismissal of the suit was appealable u/s 96 of Code of Civil Procedure, reportedly no appeal has been preferred and this subsequent application was dismissed.

Learned Counsel for the Appellant mainly advance his argument that the Appellant is prepared to pay the deficit Court fees for further proceedings of the suit.

On perusing the relevant circumstances, in this appeal merits of the case cannot be considered at this stage. On perusing the impugned order and aforesaid papers placed with the record, I am of the considered view that once an application or any proceedings had been decided by the trial Court or by the higher Court at earlier stage then on identical circumstances it could not be considered again on merits by that Court at subsequent stage on the principle of constructive res judicata. My this view is fully fortifies with the decision of the Apex Court in the matter of Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, , in which held as under:

The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

Thus, subsequent application filed by the Appellant under Order 9 Rule 9 of CPC was not maintainable in the trial Court and in continuation of it this Misc. Appeal is also not maintainable and cannot be admitted for final hearing and deserves to be dismissed.

Before parting with this case, I would like to state that Appellant has withdrawn the Civil Revision No. 544/03 on 11-8-2003 with liberty to file appropriate proceedings against the impugned order, which was challenged in such revision. But it appears that subsequent proceedings are not initiated before the right forum. Thus, dismissal of this Misc. Appeal would not come in the route of Appellant if any appropriate proceedings are initiated against the order which was subject-matter of aforesaid Civil Revision and Appellant would be at liberty to file appropriate proceedings in accordance with law.

Appeal is dismissed in limine with aforesaid observations.

Certified copy as per rules.