Delhi High Court
M/S Capital Land Builders (Pvt) ... vs Municipal Corporation Of Delhi & ... on 15 January, 2018
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15.01.2018
+ RSA 91/2013
M/S CAPITAL LAND BUILDERS (PVT) LTD. ..... Appellant
Through: Mr. Randhir Pandey, Advocate.
Versus
MUNICIPAL CORPORATION OF DELHI & ANR. .....Respondents
Through: Mr. Sunil Goel, Standing Counsel
with Ms. Supreet B. And Mr. Mayank
Goel, Advocates for Respondent
No.1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. The present second appeal has been filed by the appellant against the
dismissal of their appeal being RCA No. 78/2011 on 01.03.2013, preferred
against the judgment dated 19.04.2005 in Suit No. 210/1981, wherein the
learned Civil Judge, Delhi, had found that the suit was barred by the rule of
res judicata.
2. For the sake of convenience, the parties are referred to as the
'plaintiff' and the 'defendant' in the same sequence in which they were
arrayed in the original suit.
3. The facts of the case are that the plaintiff/ appellant had sought a
permanent injunction against the defendant No.1/Municipal Corporation of
Delhi (MCD) and defendant No.2/Bhagwan Dass Nagar Residents Welfare
Association (Regd.), seeking a restrainment against the latter from taking
possession of land admeasuring 1.5 acres, earmarked for a school, and 193.6
square yards of land for a Petrol Pump, situated in Khasra No. 81-83 of
Village Shakurpur, New Delhi, which the plaintiff claimed it owned. This
case was instituted in 1981. After the framing of issues, pending the
recording of evidence, the plaintiff had filed another suit for injunction i.e.
Suit No.151/1997, seeking restrainment of the defendants from interference
in the aforesaid property of 1.5 acres. The issues were framed in the latter
suit too and subsequently, after trial, it was dismissed. The first and the
second appeals against its dismissal were also dismissed. In these
circumstances, the defendant No. 2 had moved an application seeking
dismissal of the first suit on the ground of res judicata, since similar reliefs
had been sought and dismissed apropos the suit property between the same
parties.
4. Considering the above facts, the learned Trial Court dismissed the
pending first suit i.e. Suit No. 210/1981 as being barred by the doctrine of
res judicata. The First Appellate Court upheld the dismissal.
5. In effect, now this is the sixth round of litigation for the same relief by
the plaintiff. It is the plaintiff's contention that since Suit No.151/1997 was
dismissed without any evidence, the subsequent suit cannot be treated as
being barred by the doctrine of res judicata i.e. on account of a decision in a
previously instituted suit for the same relief. In support of his contentions,
he relies upon the following judgments:-
(i) M. Nagabhushana vs. State of Karnataka & Ors., (2011) 3 SCC 408
(ii) D.L. F. Universal Ltd. vs. Arjan Singh & Ors., AIR 1986 Delhi 381
(DB)
(iii) Syed Mohd. Salie Labbai (Dead) by L.Rs. & Ors. vs. Mohd. Hanifa
(Dead) by L. Rs. & Ors., AIR 1976 SC 1569
(iv) Gurbaksh Singh vs. Bhooralal, AIR 1969 SC 1810
(v) Sheodan Singh vs. Daryao Kunwar, AIR 1966 SC 1332
(vi) State of Maharashtra & Anr. vs. M/s National Construction Company,
Bombay & Anr., AIR 1996 S.C. 2367
(vii) Kunjan Nair Sivaraman Nair vs. Narayanan Nair & Ors., (2004) 3
SCC 277
(viii) Chandradhoja Sahoo vs. State of Orissa & Ors., AIR 2013 S.C. 367
6. In rebuttal, the learned counsel for the defendant states that the
principle of res judicata would be applicable, the appeals too were
dismissed as being without merit, hence this second appeal too should be
dismissed.
7. The Court is of the view that the prayers sought in both the suits are
nearly identical. Suit No. 210/81, had sought permanent injunction
restraining the defendants from interfering in the land admeasuring 1.5 acres
earmarked for a school, as fully described in the lay-out plan of Bhagwan
Dass Colony, Rohtak Road, Delhi, out of Khasra No.81/1 in the estate of
Village Shakurpur, Rohtak Road, Delhi. The subsequent suit being Suit No.
151/1997 had sought restrainment of the defendants, their agents and
employees from interfering in the aforesaid site, as an interim measure.
8. In the second suit, the learned Trial Court observed that:-
"7. Plaintiff failed to lead any evidence despite the repeated
opportunities. Finally last opportunity was given on
23.11.2000 for 22.1.2001 but none of the witness was present.
Thereafter, the plaintiff evidence was closed."
9. Considering the question of burden of proof in the issue: whether the
plaintiff was the owner of the suit land was upon the plaintiff, and it had
chosen not to lead any evidence, there being no evidence establishing the
ownership of the plaintiff, the learned Trial Court decided the first issue
against the plaintiff. Similarly, the issue Nos. 2, 3 and 4 i.e. (i) whether the
possession of the suit land had been taken by the defendant No. l on
19.09.1977; (ii) whether the suit was barred under Order II Rule 2 CPC on
account of the previously instituted Suit No.850/1994; and (iii) whether the
plaintiff had suppressed material facts, the Trial Court held that the plaintiff
had sought restrainment against the defendant from interfering in the land
admeasuring 1.5 acres for the school out of Khasra No.81/1, which relief
was apparently covered in the previously instituted suit. Hence, the second
suit being barred by the provisions of Order II Rule 2 CPC, this issue was
also decided against the plaintiff.
10. The learned counsel for the MCD submits that in any case, after the
dismissal of the previously instituted suit, the second suit seeking identical/
similar reliefs ought to have been dismissed, being covered by the principles
of res judicata.
11. From the preceding discussion it is evident that both the suits had
sought the same reliefs, regarding the same property and concerned the same
parties. But each time, the plaintiff failed to prove its case. Hence the suits
and the successive appeals were rightly dismissed. This appeal too is
destined to suffer the same fate because in view of its aforesaid antecedents,
it is covered by the principle of res judicata.
12. In the aforesaid circumstances, the Court finds no reason to interfere
with the impugned order. Accordingly, the appeal is dismissed.
NAJMI WAZIRI, J.
JANUARY 15, 2018/sb
