Somesh Somendra Singh And 3 Others vs Smt. Mohini Singh
2022 Latest Caselaw 6367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2340 of 2018
 

 
Petitioner :- Somesh Somendra Singh And 3 Others
 
Respondent :- Smt. Mohini Singh
 
Counsel for Petitioner :- Rahul Sahai,Avdhesh Narayan Tiwari,Kamal Singh,Sanjay Agrawal
 
Counsel for Respondent :- Jai Singh Parihar
 

 
Hon'ble Siddhartha Varma,J.

Heard learned counsel for the petitioners and Sri Jai Singh Parihar for the respondent.

A Suit was filed by the respondent for permanent injunction restraining the defendant-petitioners from evicting the plaintiff-respondent without adhering to the due process of law. The suit was decreed on 15.12.2001 and an injunction was issued to the defendants not to evict the plaintiff-respondent without following the due process of law. The defendants filed a First Appeal being First Appeal No.1 of 2002. This First Appeal was allowed and the judgment and decree dated 15.12.2021 was set aside. The petitioners thereafter filed an application for execution which was dismissed on 13.9.2017 as the execution was not found maintainable. Aggrieved by the order dated 13.9.2017, the petitioners filed a Revision. The Revisional Court dismissed the revision. However, it gave a finding that since the petitioners had not filed any counter-claim in the suit filed by the plaintiff-respondent, they could not file any suit for eviction. Aggrieved by this finding, the petitioners have filed the instant application under Article 227 of the Constitution of India.

The contention of learned counsel for the petitioners is that the finding as has been arrived at by the Revisional Court that the petitioners could not file any suit for eviction as they had not filed any counter claim in the suit filed by the plaintiff-respondent is erroneous in law and may be set-aside. To bolster his submission, learned counsel for the petitioners has relied upon a decision of the Supreme Court Choudhary Sahu (Dead) by Lrs. & Ors. vs. State of Bihar & Ors. reported in AIR 1982 SC 98 and has stated that if any finding is not challenged, it operates as res-judicata. Learned counsel for the petitioners otherwise also submitted that the finding was unwarranted and deserves to be set aside.

Learned counsel appearing for the respondent Sri Jai Singh Parihar, in reply, submitted that since the petitioners had not filed any counter claim in the suit filed by the respondent, they had no right thereafter to file a suit for eviction of the plaintiff-respondent.

Having heard learned counsel for the parties and after going through the record, the Court is definitely of the view that the finding arrived at by the Revisional Court is unwarranted in law. The petitioners can always file a suit for eviction and evict the respondent by adopting due process of law. The finding, therefore, which has been arrived at by the Reivisonal Court that "now the defendant-petitioners in the Revision could not file any suit for dispossession" is set aside. To clarify the order, the operative portion of the order, which is being set-aside, is being reproduced here as under :-

"?? ?? ???? ? ?? ?????? ?? (????????) ????????? ?? ???? ??, ? ?? ???????????? ??????? ?? ??????? ??????? ?????? ???? ?? ??????? ?????? ?? ??? ?? ???? ?? ???? ???"

For what has been stated above, the petition stands allowed.

Order Date :- 8.7.2022

GS

(Siddhartha Varma, J.)