Ajay Kumar vs Om Prakash & Anr
2020 Latest Caselaw 922 Del

$~58

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Judgment delivered on: 11.02.2020
+      FAO 76/2020
AJAY KUMAR                                                ..... Appellant
                                   versus

OM PRAKASH & ANR                                         ..... Respondents
Advocates who appeared in this case:
For the Petitioner:                         Mr. Akash Deep, Advocate

For the Respondents/Caveators:              None.

CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
                                 JUDGMENT

SANJEEV SACHDEVA, J. (ORAL) CAV. 130/2020 None appears for the respondent-Caveator. CM APPL. 5432/2020 (condonation of delay) For the reasons stated in the application the delay of 12 days in re-filing petition is condoned. The application is allowed.

FAO 76/2020

1. Appellant impugns order dated 18.11.2019 whereby application of the appellant under Order XXXIX Rules 1 and 2 CPC has been dismissed.

2. Appellant has filed the subject Suit for declaration and permanent injunction seeking a declaration that the GPA, Affidavit, possession letter, Will dated 20.03.2010 and Gift Deed dated 07.05.2015 executed by respondent no. 1 in favour of respondent be declared null and void and not binding on the rights of the appellant in the Suit. Further restraint had been sought on the respondents from creating any third party interest in the Suit property.

3. In the impugned order dated 18.11.2019, trial court has noticed that a plea has been taken by respondent no. 1 that the Suit is barred by the principles of res judicata as the grounds raised by the appellant have already been decided in an earlier Suit.

4. Trial court, in the impugned order, has noticed that respondent no. 2 had earlier filed a Suit for possession and perpetual injunction and mesne profits against the appellant. In the said Suit respondent no. 2 had claimed to be owner of the subject property by virtue of the registered gift deed dated 07.05.2015 executed by respondent no. 2 in her favour. Same gift deed is subject to challenge in the present Suit.

5. Said Suit was contested by the appellant and after trial the Suit was decreed in favour of respondent no. 2 and decree of possession was passed.

6. Appellant thereafter filed an appeal to the High Court being RFA. No. 557/2018.

7. The defence taken by the appellant in the earlier Suit filed by Respondent No. 2 and also in the appeal challenging the decree in the said Suit are the same as the grounds of challenge in the present Suit filed by the Appellant.

8. Before the High Court on 06.08.2018, appellant withdraw RFA. No. 557/2018 and sought time and undertook to vacate the subject premises on or before 31.12.2019.

9. Trial court has rightly held that the issues arising in the subject Suits as also in the earlier Suit instituted by respondent no. 2 against the appellant are common and principles of res judicata and issue estoppel would apply.

10. The Supreme Court of India in Hope Plantations Ltd. v. Taluk Land Board, (1999) 5 SCC 590 has held as under:

"26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been

finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."

(underlining supplied)

11. In view of the above, I find no infirmity in the impugned order passed by the trial court holding that the appellant has not made out a prima facie case in his favour for grant of an ad-interim injunction.

12. I find no merit in the appeal. The appeal is accordingly dismissed.

SANJEEV SACHDEVA, J FEBRUARY 11, 2020 'rs'