Calcutta High Court (Appellete Side)
Smt. Bijaya Ghosh & Ors vs Smt. Anita Ghosh on 31 August, 2018
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
1
S/L 14
31.08.2018
Ct. No. 6
SD
C.O. 1736 of 2018
(Assigned)
Smt. Bijaya Ghosh & Ors.
Vs.
Smt. Anita Ghosh
Mr. Asit Baran Raut
Mr. Anirban Ghosh
... for the Petitioners.
Mr. Aniruddha Chatterjee
Mr. Avisek Ghosh
Mr. Debjit Mukherjee
Ms. Susmita Chatterjee
Ms. Dipanwita Ganguly
... for the Respondent.
This revisional application is directed against Order No.8 dated April 7, 2018 passed by the learned Civil Judge (Senior Division), 3rd Court, Howrah in Miscellaneous Appeal No.181 of 2017.
The defendants are the petitioners before this court challenging the above order by which their appeal has been rejected affirming the order of refusal to pass an order of injunction in his favour by the learned Trial Court by an order dated September 14, 2017.
It is apparent from the record that the petitioners as defendants filed an application for injunction under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure in respect of selfsame 'B' Schedule property as mentioned in the plaint claiming that the same is being used by both the plaintiff and the defendants as common passage between them. The learned Trial Court by the aforesaid order dated September 14, 2017 refused to pass an order of injunction in favour of the defendants.
While refusing such prayer for injunction, it was considered by the learned Trial Court below that on a previous occasion immediately after filing of the suit in 2010, the plaintiff filed an application praying for temporary injunction restraining the defendants from disturbing the plaintiff's peaceful possession in the suit passage fully described in the schedule 'B' below or from dispossessing the present plaintiff from the selfsame suit passage by taking forcible possession thereof in any manner whatsoever or from interfering with the plaintiff's peaceful possession in the suit passage fully described in schedule 'B' in any manner whatsoever and further from changing the nature, character 2 and condition thereof by opening up a drain therein till disposal of the injunction application upon consideration of material particulars on record.
The defendants also made a similar application for temporary injunction making similar prayer against the plaintiff. By an order dated June 14, 2010 the learned Trial Court disposed of the application filed by the plaintiff as well as the defendants whereby plaintiff's application was allowed and the defendants' application for injunction was rejected.
The order which was passed in favour of the plaintiff reads as follows:-
"that the petition under order 39 rule 1 and 2 read with section 151 of the Code of Civil Procedure filed by the plaintiff is hereby allowed on contest without cost.
The defendants their men agents and associates are hereby restrained by way of temporary injunction from disturbing the plaintiff's peaceful possession in the suit passage fully described in B schedule or from dispossessing the present plaintiff from the self same suit passage by taking forcible possession thereof in any manner whatsoever of from interfering in the suit passage and further from changing the nature, character and condition thereof by opening up a drain therein till the disposal of the suit."
While such injunction was passed by the learned Trial court in favour of the plaintiff, it observed that on a meticulous scrutiny of the documents, pleadings, application and written objection filed by the parties, it appeared to the Court that the said 5 feet passage mentioned in the 'B' Schedule was a private passage of the plaintiff and not the common passage as averred by the defendants. Accordingly, the learned Court on consideration of the basic ingredients in support of passing an order of injunction i.e. prima facie case, balance of convenience and inconvenience and irreparable loss and injury allowed the prayer of the plaintiff. Similarly, since these ingredients were not in favour the plaintiff, the trial court rejected the application for injunction filed by the defendants.
Admittedly, this order of injunction is still in force and the defendants have not filed any appeal challenging the said order. In such a situation, the defendants have filed an application under Order XXXIX Rule 1 and 2 afresh and prayed for similar prayer for temporary injunction in respect of the suit property.
Mr. Raut appearing for the defendants/petitioners submits that the present application for injunction is on a different context and under changed circumstances, 3 inasmuch as, the plaintiff has been making illegal construction and thereby causing encroachment upon such B-Schedule property. Therefore, there is nothing wrong on the part of his client to take out a separate application.
I have already pointed out that the learned Trial Court on consideration of the materials disclosed before this Court and considering his earlier order rejected the application and an appeal has been filed before the Court below being Misc. Appeal No.181 of 2017 which has been dismissed by the order impugned.
While dismissing the said appeal, the learned Appellate Court below held that the defendants' application under Order XXXIX Rule 1 and 2 is not maintainable inasmuch as under previous occasion in the selfsame suit, the learned Trial Court passed an order of injunction which was not challenged by the defendants. Therefore, the said order will operate as res judicata against the defendants and the second application for injunction cannot be entertained.
Principle of res judicata is intended not only to prevent a new decision, but also to prevent a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same question of law. Section 11, C.P.C. operates against both the parties to a suit and not against the defendants alone. The doctrine of res judicata rests on a principle that one should not be vexed twice for the same cause and that there should be finality of litigation. This rule is applicable as a rule of public policy for giving finality to orders passed by judicial authorities and for avoiding frivolous and multifarious litigations. Such principle of res judicata operates on the Court. Courts are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties.
Order passed in some proceeding at one stage also operates as res judicata between the parties at subsequent stage of the same proceedings as has been laid down in the case of Satyadhyan Ghosal & Ors. - Vs. - Sm. Deorajin Debi And Another, reported in AIR 1960 SC 941 where the earlier application for grant of temporary injunction was adjudicated in accordance with law. It is the settled law that where the earlier application for grant of temporary injunction was adjudicated in accordance with law, subsequent application with same allegations and relief is not maintainable. It is not permissible for any party to raise an issue inter se where such an issue under the very Act has been decided at an early proceeding even if res judicata in its strict sense may not apply but its 4 principle would be applicable. As rightly pointed out by Mr. Chatterjee appearing in support of the opposite party that such principle is very much applicable in the present case and the learned Appellate Court below has rightly dismissed the petitioners' appeal holding that the prayer made by the defendants/petitioners is barred by res judicata as their earlier application in the same proceeding was rejected. Mr. Chatterjee has rightly pointed out the ratio of the decision decided by this Court in the case of Special Steel and Wire Wings - Vs. - Radhe Shyam Bhootra, reported in 2016(4) ICC 804 Cal. Paragraph 6 of the said judgment is relevant for the purpose and is set out below :
"6. On going through the said decision this Court is satisfied that order earlier passed in the selfsame proceeding principle of res judicata applies at the interlocutory stage of a proceeding if similar prayers are being made at a subsequent stage of a proceeding when admittedly such prayer has been rejected by the Court upon consideration of the materials on record."
The learned Appellate Court below while disposing of the appeal has also held that the appellant produced a copy of the sale deed of the respondent with a plea that there is an averment that 'B' Schedule passage would be used by the respondent along with the other persons of the locale which was disputed by the respondents and they submitted that they have exclusive right, title and interest over the 'A' Schedule property and according to the Appellate Court below, no question of encroachment by construction over 'B' Schedule property passage arises.
The learned Court below prima facie held that the plaintiff is in possession of the suit property and the 'B' Schedule property is a private passage of the plaintiff but not a common passage. Therefore, the learned Court of Appeal below has held that the order passed by the Trial Court rejecting the application for injunction is not maintainable.
That apart, I have also perused the written statement with the counter-claim filed by the defendants in the Court below. From the written statement, it appears to be precisely the case made out by the defendants that by way of prescription they have acquired right in the 'B' Schedule property and they have made a prayer for mandatory injunction for removal of the fixation of gate on the said 'B' Schedule property and also for permanent injunction of the plaintiff from making any encroachment over the 'B' Schedule property. The prayer which has been made with the counter-claim is to be 5 adjudicated on the evidence at the trial of the suit but not at the interlocutory stage. If the plaintiff fails to prove that he is not in possession of the property in respect of which injunction is sought, Court is under no obligation to pass an order of injunction against a party who is found to be possession of the suit property. Since in deciding earlier application for injunction, the Court has unhesitatingly found that the plaintiff has fulfilled the criteria for grant of a temporary injunction and that having not challenged, according to me, no wrong has been committed either by the Trial Court or by the learned Appellate Court below. Therefore, the revisional application cannot be entertained and the orders impugned does not call for any interference of this Court.
However, it cannot be said that the defendants have not made out any triable issue by their written statement with counter-claim and, therefore, even if no injunction is granted by the Court, this Court holds that any encroachment, if already made by the plaintiff on the 'B' Schedule property, shall not by itself create any equity in favour of the plaintiff and it will be open for the defendants to prove their case of counter-claim at the trial Court.
With these above observations, C.O.1736 of 2018 is disposed of.
(Sahidullah Munshi, J.)