Bombay High Court
Sanjay S/O Dashrath Jawanjalkar ... vs Dilip S/O Ramaji Chilbule on 16 January, 2018
Bench: Z.A. Haq
Judgment 1 wp6331.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6331/2017
1] Sanjay S/o Dashrath Jawanjalkar,
Aged about 32 years,
Occ. Business
2] Chandu S/o Dashrath Jawanjalkar,
Aged about 29 years,
Occ. Business
3] Smt. Kamal Wd/o Dashrath Jawanjalkar,
Aged about 57 years,
Occ. Household
All R/o Nehru Ward No. 5, Armori,
Tah. Armori, District-Gadchiroli ... PETITIONERS
...V E R S U S...
Dilip S/o Ramaji Chilbule,
Aged about 54 years,
Occ. Business, R/o Armori,
Nehru Ward No. 5,
Tah. Armori, District-Gadchiroli ... RESPONDENT
===================================
Shri A.S. Bhendarkar, Advocate for the petitioners
Shri R. Vyas, Advocate for the respondent
===================================
CORAM:- Z.A. HAQ,J.
th
DATED :- 16 JANUARY, 2018
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ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] The respondent-plaintiff has filed Regular Civil Suit
No. 35/2015 against the petitioners-defendants praying for decree
for injunction restraining the petitioners-defendants from
transferring the suit land. The petitioners-defendants opposed the
claim of the respondent-plaintiff, one of the objection being that
the plaintiff had earlier filed Regular Civil Suit No. 05/2005
against Dashrath Raghunath Janjalkar and Chandrashekhar
Raghunath Janjalkar (from whom the petitioners have purchased
the property in question) praying for decree for declaration that as
per the sale-deed dated 08/06/1995, the plaintiff has common
right and title over the property in question. In the Regular Civil
Suit No. 05/2005, the plaintiff had prayed for decree for
permanent injunction restraining Dashrath Raghunath Janjalkar
and Chandrashekhar Raghunath Janjalkar from interfering and
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obstructing the right of the plaintiff over the courtyard of the
property in question. The petitioners-defendants contended that as
the Regular Civil Suit No. 05/2005 is dismissed by the Civil Court
by the judgment dated 13/11/2006 and the claim of the
respondent-plaintiff in that civil suit is rejected, the findings given
in the judgment in Regular Civil Suit No. 05/2005 operate as res-
judicata. The petitioners prayed that the Regular Civil Suit
No. 35/2015 now filed by the respondent-plaintiff against the
petitioners be dismissed. The learned trial Judge framed an issue
as to whether the claim of the plaintiff is barred by res-judicata,
tried it as a preliminary issue and by the impugned order has held
that the claim of the plaintiff is not hit by res-judicata. The
petitioners, being aggrieved by this order have approached this
Court.
3] On examining the impugned order, I find that the
learned trial Judge has held that the findings recorded in Regular
Civil Suit No. 05/2005 do not operate as res-judicata as the
property which is the subject matter of the present civil suit i.e.
Regular Civil Suit No. 35/2015 is different from the property
which was the subject matter of the Regular Civil Suit No.
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05/2005. The learned advocate for the petitioners-defendants has
pointed out that the conclusions of the learned trial Judge are
perverse and unsustainable as the property which is the subject
matter of Regular Civil Suit No. 35/2015 was the subject matter of
Regular Civil Suit No. 05/2005. The learned advocate for the
respondent-plaintiff has not disputed this factual aspect however,
the learned advocate for the respondent-plaintiff submitted that
the claim in Regular Civil Suit No. 35/2015 is different from the
claim in Regular Civil Suit No. 05/2005 and the cause of action for
filing Regular Civil Suit No. 35/2015 has arisen subsequent to the
disposal of Regular Civil Suit No. 05/2005 and therefore the
findings recorded in the judgment given in Regular Civil Suit
No. 05/2005 cannot operate as res-judicata and cannot come in
the way of the plaintiff from seeking relief as sought in Regular
Civil Suit No. 35/2015. The learned trial Judge has not considered
these aspects and has answered the preliminary issue erroneously
recording that the property which is the subject matter of Regular
Civil Suit No. 35/2015 is different from the property which was
the subject matter of Regular Civil Suit No. 05/2005.
4] As the impugned order is passed on erroneous
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consideration of facts and as the relevant submissions are not
considered, the impugned order is unsustainable.
Hence, the following order is passed:-
O R D E R
1] The impugned order is set aside.
2] The matter is remitted to the trial Court for
deciding the issue afresh according to law.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
