Smt.Santosh vs Sh. Hari Singh
2010 Latest Caselaw 3658 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                 Date of Judgment : 6th of August, 2010

+                  RSA No.139/2010


SMT.SANTOSH                         ...........Appellant
                   Through:    Mr.Sunil Mittal & Ms.Maldeep
                               Sindhu, Advocates.

             Versus
SH. HARI SINGH
                                   ..........Respondent
                   Through:    Nemo

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                           Yes

INDERMEET KAUR, J.(Oral)

CM No.12549/2020 (for exemption)

       Allowed subject to just exceptions.

RSA No.139/2010

1.     The coloured site plan has been placed on record. Learned

counsel for the appellant has urged that the impugned judgment

dated 6.4.2010 has not correctly appreciated the fact that the

subject matter in the suit No.304/1997 (decided vide judgment

and decree dated 16.8.2002) has to be read in conformity with the

plaint of that suit.    It is submitted that the application of the

doctrine of res judicata as such did not arise and the judgments of

both the two Courts below have misapplied the doctrine which has

raised a substantial question of law.

2.     Present suit was a suit for permanent and mandatory

injunction filed by the appellant against the respondent/defendant
RSA No.139/2010                                            Page 1 of 3
 Hari Singh. The relief sought for        is as follows:

      "The defendant be restrained from installing door at main entry at
      point „A‟ to „C‟ in disputed gali shown in Red in site plan of
      property No.107, Lal Dora, Village, Masoodpur, Near Vasant Kunj,
      New Delhi and the defendants be restrained from closing main
      entry at point „A‟ to „C‟ of gali and from interfering in peaceful
      enjoyment and from dispossessing plaintiffs from dispute gali
      Mark A to B shown in site plan."


3.    A preliminary objection had been framed as to whether the

suit is barred by the principle of res judicata as the judgment in

earlier suit between the same parties i.e. in suit No.304/1997

decided on 16.8.2002 had already decided this issue. The said suit

was also a suit for permanent injunction; it had been decreed in

favour of Hari Singh i.e. the plaintiff therein and the appellant

herein was restrained from interfering in the peaceful enjoyment

of Hari Singh in respect of the aforenoted disputed gali and from

raising any construction thereon.             Appeal against the said

judgment dated 16.8.2002 had been filed which had also been

dismissed on 5.11.2003. These facts are not in dispute.

4.    The relevant findings in suit no. 304/1997 were dealt with

while disposing of issue no.3. The relevant extract of which inter

alia reads as follows:

      "The entire evidence shows that the disputed gali is shown in red
      colour in the site plan Ex.PW-1/1 was exclusively left by PW2 for
      the use of the plaintiff for the ingress and egress and defendants
      have not right to raise construction of any kind in the gali or to
      interfere in the use and occupation of the disputed gali by the
      plaintiff.    The issue is decided accordingly in favour of the
      plaintiff."


      This finding was given after appreciating the version of DW2

that there was a gate at point A to C of the disputed gali in the site

plan Ex.PW-1/1 which they did not wish to close.

RSA No.139/2010                                                     Page 2 of 3
 5.    Present suit of the plaintiff was accordingly dismissed being

barred by principle of res judicata. The first Appellate Court had

endorsed this finding on 6.4.2010.

6.    Certified copy of the site plan filed before this Court clearly

shows that the portion marked red is the disputed gali on which

the right of Hari Singh stood established. Suit of Hari Singh was

decreed holding that the gali had been left open in favour of Hari

Singh for his use, ingress and egress and the defendant has no

right to raise any construction of any kind and to interfere in the

use and occupation of the said gali.       This judgment has since

attained a finality, it was between the same parties now before this

court and on the same subject matter.

7.    The principle of res judicata as engrafted in Section 11 of the

Code of Civil Procedure is a policy decision to bring a finality to a

litigation and not to permit the parties to agitate and re-agitate the

same issue over and over again.

8.    The substantial questions of law as formulated in the memo

of appeal all relate to the applicability of this doctrine.         No

question of law much less any substantial question of law has been

raised in this appeal.    Appeal is dismissed in limine. File be

consigned to record room.



                                          INDERMEET KAUR, J.

AUGUST 06, 2010 nandan