Bankey Bihari & Another vs Ram Janam & 4 Others
2015 Latest Caselaw 571 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 2
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2253 of 2015
 

 
Petitioner :- Bankey Bihari & Another
 
Respondent :- Ram Janam & 4 Others
 
Counsel for Petitioner :- Dinesh Chandra Mishra
 
Counsel for Respondent :- Rajesh Sisodiya
 

 
Hon'ble Ashwani Kumar Mishra,J.

This petition is directed against an order passed in revision, whereby the issue as to whether the suit is barred by the res judicata has been remitted back for fresh consideration.

It appears that a previous Suit No. 677 of 1954 was decreed in appeal and the defendants contend that Suit No. 329 of 2009 is also in respect of the same property. The trial court accepted this contention and the suit was held to be barred by res judicata. The revisional court has found that the facts as to whether the suit property in both the suits is one and same has not been properly appreciated and, therefore, the matter has been remitted back for a fresh consideration. The revisional court has observed that the question as to whether the property in both the suits are one and the same can be determined only after the evidence is led in the suit and, therefore, the issues with regard to res judicata can be decided along with other issues after the evidence is led.

Learned counsel for the petitioner submits that both the properties are one and same and, therefore, the revisional court's order is bad in law.

This submission is opposed by learned counsel for the respondents, who submits that the question as to whether property in both the suits are one and the same is essentially a question of fact, which can only be determined after the evidence is led.

Having considered the submissions advanced by learned counsel for the parties, this Court finds that the question as to whether the property which is the subject matter of Original Suit No. 329 of 2009 is same and whether the suit is barred under Section 11 can be determined only after the evidence is led in the matter. The suit of 1954 had been decreed in appeal and was also executed at that stage. It is after a long gap of almost 50 years that a fresh suit has been filed. The change of situation due to intervening period cannot be ruled out.

In such circumstances, if the revisional court has observed that such issues ought to be considered after evidence is led by the parties cannot be said to be perverse or erroneous.

No interference, therefore, is called for in the present matter which is consigned to the record.

Order Date :- 20.5.2015

Ashish Pd.