The Superintending Engineer, (Coimbatore Nilgiri Division) P.W.D., Coimbatore and another vs Durairaj

Padmini Jesudural, J.—The first defendant in O.S. No. 32/88 on the file of the District Munsif, Sathiyamangalam, has filed this application

under S. 5 of the Limitation Act, seeking condonation of a delay of 224 days in filing a second appeal challenging the judgment and decree of the

first Appellate Court (Sub Court, Gobichettipalayam) in A.S. 76/89. The reasons given in the affidavit filed in support of the application is that, the

judgment in A.S. No. 76/89 on the file of the Sub Court, Gobichettipalayam was pronounced on 6.3.91, that the Government Pleader filed a copy

application No. 503/91 on 83.91 and stamp papers were called and since mean time the Government Pleader, Sathiyamangalam, who was in

charge of the case resigned his post and the stamp papers were not deposited in time and hence the copy application was struck off on 2.4.91.

The petitioner filed I.A. No. 555/91 under Sec. 151 C.P.C. for restoration of copy application No. 503/91. The learned Subordinate Judge issued

notice to the respondent and after hearing both sides, dismissed I.A. No. 555/91 on 13.1.92. There upon the petitioner filed a fresh copy

application on 14.1.92. Stamp papers being called for on 20.1.92, deposited on 24.1.92, and after receipt of the copies the second appeal has

been filed on 5.3.92 along with the present application under S. 5 of the Limitation Act to condone the delay of the total period of 224 days in

filing the second appeal

The respondent/plaintiff has filed counter objecting to the condonation raising several contentions and an additional counter too.

The learned Government Pleader reiterated the averments made in the affidavit filed in support of the application and submitted that the delay

has to be condoned.

Thiru Peppin Fernado, learned counsel for the respondent contended that the copy application 503/91 was struck off on 2.4.91 and I.A. No.

555/91 under S. 5 of the Limitation Act and S. 151, C.P.C. on the ground that the Government Advocate, Sathiyamangalam who was in charge of

Gobichettipalayam also had resigned and the learned Subordinate Judge had rejected this condonation application and had declined to condone

the delay, holding it as not a sufficient cause for the condonation and this finding of the learned Subordinate Judge in I.A. No. 555/91 had not been

challenged further and had been allowed to become final and as such, it operates as res judicata against the petitioner and it is not open to the

petitioner now to seek condonation for the delay of the same period on the same reason. Res Judicata applies in different stages of the same suit

and was applicable to interlocutory applications as well and that therefore, the delay between 2.4.91 and 20.12.91 could not be condoned. In

support of the above contention, the learned counsel relied upon several pronouncements of difference courts, which I shall deal with presently.

In Arjun Singh Vs. Mohindra Kumar and Others, , the Supreme Court held that the scope of the principle of res judicata is not confined to what

is contained in S. l1 of the CPC but is of more general application and could be as such applicable to different stages of the same suit, as to

findings on issues in different suits. The principle could be invoked in the case of the different stages of proceedings in the same suit.

In Brij Bhusan Singh v. Nagendra Singh and Another (AIR 1977 Pat 1291, a learned single Judge of the Patna High Court has held that the

principle of res judicata applies to the different stages in the same litigation and the issue decided, cannot be re-adjudicated in the same litigation

pending disposal in another stage.

Mohamed Khalid v. Chief Commissioner, Delhi (A.I.R. 1968 Delhi 13) also reiterated the same principle that decision given in respect of part

of the matter in controversy between the parties would be binding in subsequent stage or the same proceedings.

In Abdul Ghani v. Mahant Ram Ganan and Others (AIR 1976 Jammu & Kashmir 72), following the Judgment in Arjun Singh Vs. Mohindra

Kumar and Others, referred to above, it was held that though the principle of res judicata might not be applicable to the findings contained in

interim or interlocutory orders like stay, or receiver, which are designed to preserve the status quo pending the litigation and to ensure that the

parties may not be prejudiced by the delay which the proceedings before the Court usually entail second application for obtaining substantially the

same order or relief, cannot lie when a previous application on identical facts has been refused.

In A. Thakudas v. V. Venilal and Others (A.I.R. 1977 Kar 60), it was held that the principle of res judicata can be invoked even in

interlocutory proceedings arising out of the same suit.

Reliance was also placed on the judgment of a Division Bench of the Andhra Pradesh High Court in P. Satyanarayana Vs. The Land Reforms

Tribunal and Others, that review of an earlier order by the same Court could not be permitted except when the order has been obtained by fraud

or misrepresentation.

The learned Counsel, finally relied upon a judgment of the Division Bench of this Court in the Land Acquisition Officer v. Kannan Pillai and

Others (1992-2-L.W. 28), wherein it was held that where the copy application itself has been filed after the period of limitation has expired, there

is no scope for the application of S. 12 of the Limitation Act for exclusion of the time taken for obtaining the copy while computing the period of

limitation.

The learned Government Pleader in answering to the above decisions would only refer to the judgment of the Supreme Court in The Collector

Land Acquisition, Anantnag v. Katiji, (A.I.R. 1987 S.C. 1333), wherein the Court held that in condoning delay under S. 5 of the Limitation Act,

Courts should adopt a liberal approach.

It is clear from the aforesaid decisions that the fading of the learned Subordinate Judge in I.A. No. 55l/91 filed under S. 5 of the Limitation Act

and S. 151 of the CPC has become final. The sufficient cause put forward by the petitioner for condoning the above delay was that the

Government Pleader of Sathiyamangalam who was in charge of the case had resigned and hence there was a delay in following the proceedings.

The petitioner had not chosen to file any revision or review against the order of the learned Subordinate Judge in that I.A. 555/91, when that order

has become final on the basis of the decisions referred to above, it is clear that it is not open to the petitioner to put forward the same reason to

condone the delay for the same period. Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, relied on by the learned

Government Pleader is of a general nature and is no answer to the legal contention of the learned counsel for the respondent based upon the

principle of res judicata. In the result, the delay cannot be condoned. This petition is dismissed.