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1 - 9 of 9 (0.20 seconds)The Code of Civil Procedure, 1908
Shri Nyaneshwar Bhiku Dhargalkar vs Executive Engineer, P.W.D., Goa on 26 February, 1999
5. To get over the above position, Mr. Naik, however, contended that the objection of the petitioners to the maintainability of the proceedings was on the argument of application of principles of res judicata. He submit that if the earlier application is dismissed for default, as has happened in the present case, then, in view of the enunciation of the Apex Court in Shivashankar Prasad Shah's case (supra), as well as our High Court in Nyaneshwar's case (supra), the question of attracting the principles of res judicata does not arise. However, this submission overlooks that the main objection of the petitioners was to the maintainability of successive application. Indeed, the Sub-Divisional Officer has proceeded to examine the same on the touchstone of the principles of res judicata, but the fact remains that, in essence, the objection was to the maintainability of application as such. That objection will have to be accepted on application of principles underlying Order 9, Rule 9, C.P.C., that if the earlier application is dismissed for default, it is not open for the litigant to take out another application for the same relief. In the present case, the inquiry under Section 88-B was invoked, as it was urged before this Court that such an application for that relief was not filed on behalf of the trust. That statement was made before this Court in December, 1978 whereas, in fact, the respondent had already made application for that relief under Section 88-B which application came to be dismissed on 30th March, 1970. It is now brought to my notice that, in fact, respondent had filed one more application on 18th December, 1972 for the same relief under Section 88-B and in that application, filing of earlier application is disclosed. However, no such disclosure has been made in the subject application. Thus, the filing of earlier application in December, 1970 has not ben disclosed by the respondent in the present application (third in point of time) or before this Court in the earlier round of proceedings. Be that as it may, assuming that the second application, copy of which was tendered during the course of arguments by the learned Counsel for the petitioner, was not filed, the fact remains that the earlier application was filed by the respondent, which was dismissed for default on 30th March, 1970 and that order having attained finality, it was not open to maintain the second application for the same relief. Further, merely because this Court permitted the respondent to make application under Section 88-B of the Act, that does not mean that such application can be decided de hors the issue of non-maintainability of such application in law. In fact, the liberty granted by this Court was because of the misrepresentation made that no application under Section 88-B was filed. This by itself would disentitle the respondent trust to maintain any application. Hence, this petition succeeds. The impugned judgment and order is set aside and the application filed by the respondent under Section 88-B of the Act, which was numbered as Case No. 1 of 1981 is hereby dismissed. Rule made absolute. No order as to costs.
Article 227 in Constitution of India [Constitution]
Keraba Dattu Borachate And Ors. vs Sheshashai And Vishnu Trust on 14 August, 1990
According to him, the order issuing exemption certificate in favour of the respondents passed under Section 88-B of the Act, nevertheless, takes the colour of quasi judicial proceedings as can be discerned from the opinion recorded by the Division Bench of this Court in the case of Keraba Dattu Borachate and Ors. v. Shri Sheshashai and Vishnu Trust, .
The Punjab Tenancy Rules
Section 32G in The Bombay Tenancy and Agricultural Lands Act, 1948 [Entire Act]
Shivashankar Prasad Shah & Ors vs Baikunth Nath Singh & Ors on 7 March, 1969
5. To get over the above position, Mr. Naik, however, contended that the objection of the petitioners to the maintainability of the proceedings was on the argument of application of principles of res judicata. He submit that if the earlier application is dismissed for default, as has happened in the present case, then, in view of the enunciation of the Apex Court in Shivashankar Prasad Shah's case (supra), as well as our High Court in Nyaneshwar's case (supra), the question of attracting the principles of res judicata does not arise. However, this submission overlooks that the main objection of the petitioners was to the maintainability of successive application. Indeed, the Sub-Divisional Officer has proceeded to examine the same on the touchstone of the principles of res judicata, but the fact remains that, in essence, the objection was to the maintainability of application as such. That objection will have to be accepted on application of principles underlying Order 9, Rule 9, C.P.C., that if the earlier application is dismissed for default, it is not open for the litigant to take out another application for the same relief. In the present case, the inquiry under Section 88-B was invoked, as it was urged before this Court that such an application for that relief was not filed on behalf of the trust. That statement was made before this Court in December, 1978 whereas, in fact, the respondent had already made application for that relief under Section 88-B which application came to be dismissed on 30th March, 1970. It is now brought to my notice that, in fact, respondent had filed one more application on 18th December, 1972 for the same relief under Section 88-B and in that application, filing of earlier application is disclosed. However, no such disclosure has been made in the subject application. Thus, the filing of earlier application in December, 1970 has not ben disclosed by the respondent in the present application (third in point of time) or before this Court in the earlier round of proceedings. Be that as it may, assuming that the second application, copy of which was tendered during the course of arguments by the learned Counsel for the petitioner, was not filed, the fact remains that the earlier application was filed by the respondent, which was dismissed for default on 30th March, 1970 and that order having attained finality, it was not open to maintain the second application for the same relief. Further, merely because this Court permitted the respondent to make application under Section 88-B of the Act, that does not mean that such application can be decided de hors the issue of non-maintainability of such application in law. In fact, the liberty granted by this Court was because of the misrepresentation made that no application under Section 88-B was filed. This by itself would disentitle the respondent trust to maintain any application. Hence, this petition succeeds. The impugned judgment and order is set aside and the application filed by the respondent under Section 88-B of the Act, which was numbered as Case No. 1 of 1981 is hereby dismissed. Rule made absolute. No order as to costs.
Trimbak Purshottam Patil vs Yashodabai on 25 March, 1971
4. Having considered the rival submissions, to my mind, it will not be necessary for me to address in depth the later two contentions canvassed before me, inasmuch as I have no hesitation in accepting the argument of Mr. Karandikar that since the earlier application for issuance of exemption certificate under Section 88-B of the Act has been dismissed for default on 30th March, 1970, subsequent application for the same relief cannot be maintained in law. Mr. Karandikar has rightly pressed into service exposition of this Court in Trimbak Purushottam Pant's case (supra). In para 6 of the said decision, this Court has observed that in respect of tenancy proceedings, principles underlying Order 23, Rule 1, C.P.C., can be invoked. Applying the same analogy, I have no difficulty in accepting the argument that in proceedings under the Tenancy Act, principles underlying Order 9, Rule 9, C.P.C., can be invoked, which, in turn, would be upholding the public policy of not permitting the litigant to take out successive applications for the same relief. Viewed in this perspective, it necessarily follows that the second application, from which the present proceedings have emanated, could not have been maintained and the same ought to be dismissed at the threshold on the above reasoning. If it is so, it will not be necessary for me to dwell upon the other contentions as to whether the revision application filed by the petitioners was maintainable, or, for that matter, whether the order passed by the Sub-Divisional Officer holding that the applicant has fulfilled all the provisions of Section 88-B of the Act can be sustained in fact or in law.
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