Rajasthan High Court - Jaipur
Nawab Aftab Ali Khan S/O Late Nawab ... vs State Of Rajasthan Through The Land ... on 8 March, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 4186/2019
Nawab Aftab Ali Khan S/o Late Nawab Masoom Ali Khan, Aged
About 70 Years, By Caste- Muslim, R/o- Najar Bagh, Tonk (Raj.)
----Petitioner
Versus
1. State Of Rajasthan Through The Land Acquisition Officer,
Tonk (Raj.)
2. Azizul Haq S/o Abdul Hafiz Khan, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
3. Sa- Yakub Ali Khan S/o Ex. Nawab Ibrahim Ali Khan, By
Caste- Muslim, R/o- Najar Bagh, Tonk (Raj.)
4. Afifunnisa Baigam, (Died)
5. Salim Ahamad S/o Mus. Afifunnisa Baigam, By Caste-
Muslim, R/o- Najar Bagh, Tonk (Raj.)
6. Parveen Khan D/o Mus. Afifunnisa Baigam, By Caste-
Muslim, R/o- Najar Bagh, Tonk (Raj.)
7. Safiulla Baig, (Died)
8. Vasiulla Baig S/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
9. Khalikulla Baig S/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj)
10. Kalimulla Baig S/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
11. Matinulla Baig S/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
12. Kaneej Jamani D/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
13. Ikhlas Jahan Widow Of Safiulla Baig, By Caste- Muslim,
R/o- Najar Bagh, Tonk (Raj.)
14. Kabneej Fatma D/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
15. Kaneej Aaisha D/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
16. Kaneej Sugra D/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
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(2 of 5) [CW-4186/2019]
17. Umme Salma D/o Safiulla Baig, By Caste- Muslim, R/o-
Najar Bagh, Tonk (Raj.)
----Respondents
For Petitioner(s) : Mr. Rahul Kamwar For Respondent(s) : Mr. R.K. Agarwal, Senior Advocate, assisted by Mr. Pranjul Chopra and Mr. Adhiraj Modi - for respondent No.2 HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 08/03/2019 Aggrieved of the order dated 6th February, 2019, wherein the Court below granted an application instituted by the respondent number 1 under Order 14 Rule 2(2) of CPC; the petitioner has instituted the instant writ application.
Learned counsel for the petitioner vehemently argued that an application under the same provision i.e. Order 14 Rule 2(2) CPC, was also instituted by the very same respondent - Azizul Haq dated 18th October, 2000, and the same was adjudicated upon by the order dated 10th November, 2000, declining the same prayer observing that adjudication on the issue will be made at the time of final decision on the matter. Hence, institution of the application under the same provision on 4th February, 2019, with the same prayer, which has been adjudicated upon vide impugned order dated 5th February, 2019; was not maintainable for principle of res-judicata would be attracted even at the subsequent stage of the proceedings, as has been held by the Apex Court of the land in the cause of Barkat Ali @ Anr. Versus Badri Narain (D) by Lrs:
(2008) 3 SCC 615.(Downloaded on 30/06/2019 at 03:27:05 AM)
(3 of 5) [CW-4186/2019] According to the learned counsel, the reference is pending, is not only under Section 18, but also under Section 30 of the Land Acquisition Act, 1894. Further, the question of limitation being a mixed question of law and fact, is to be determined in the backdrop of the evidence adduced and available on record. Hence, once the conclusion was arrived at on an application with the same prayer, by the Court below vide order dated 10 th November, 2000; making an order on subsequent application under the same provision to determine the issue of limitation as preliminary issue contrary to the earlier view, is contrary to the provisions of law so also settled proposition of law as declared by the Apex Court of the land.
Per contra; Mr. R.K. Agarwal, Senior Advocate, assisted by Mr. Pranjul Chopra and Mr. Adhiraj Modi, while supporting the impugned order made by the Court below, contended that the issue of limitation was framed only on 11 th January, 2019, and therefore, its consideration as preliminary issue earlier to 11 th January, 2019, simply did not arise. Hence, the Court below committed no illegality in exercise of discretionary jurisdiction; therefore, the writ application merits rejection and calls for no interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India.
Heard and considered.
Indisputably, an application under Order 14 Rule 2(2) CPC was instituted by the same applicant - respondent No.2, on 18 th October, 2000, that was decided by the Court below vide order dated 10th November, 2000. Needless to observe that principle of res-judicata would also apply at the subsequent stage of the same (Downloaded on 30/06/2019 at 03:27:05 AM) (4 of 5) [CW-4186/2019] proceedings as has been observed by the Apex Court of the land in the case of Barkat Ali @ Anr. (supra), which reads thus:
"8. The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same Court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage."
It will also be relevant to take note of the fact that SBCWP Number 20227 of 2018: Nawab Aftab Ali Khan Versus State of Rajasthan & Ors., that was instituted by one Nawab Aftab Ali Khan, was decided vide order dated 11 th September, 2019, directing the Court below for an early conclusion of the pending proceedings in the backdrop of the law declared by the Apex Court of the land in the case of M/s. Shiv Cotex Versus Tirgun Auto Plast (P) Ltd. & Ors.: (2011) 9 SCC 678, observing thus:
"To effectuate this order, the trial court should adhere the observation of the Apex Court in the case of M/s. Shiv Cotex Versus Tirgun Auto Plast (P) Ltd. & Ors. (2011) 9 SCC 678 and the provisions of Order 17 Rule 1 CPC. Adjournment in the reference under Section 18 of the Act of 1894 not be granted without just cause and should, when warranted be by a reasoned order on a proper application being filed to the satisfaction of the trial Court. Further miscellaneous applications be decided as far as possible within three days of filing and when found frivolous be visited with costs even exemplary as a measure of the court regulating its proceedings without their being hijacked by mischievous resort to the otherwise salutary provisions of the Civil Procedure Code.(Downloaded on 30/06/2019 at 03:27:05 AM)
(5 of 5) [CW-4186/2019] With these directions, this petition is disposed of."
For the reasons aforesaid and in view of singular facts of the case at hand, the writ petition merits acceptance.
Accordingly, writ application succeeds and is hereby allowed. Order dated 6th February, 2019, is set aside. The Court below shall proceed and conclude the proceedings as early as possible in the backdrop of the order already made by a Coordinate Bench of this court in SBCWP Number 20227 of 2018.
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