Jharkhand High Court

Ajay Kumar Choubey vs Sunder Ram Raut on 29 September, 2023

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(C) No. 2728 of 2019
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Ajay Kumar Choubey .... .... .... Petitioner Versus Sunder Ram Raut .... .... .... Respondent

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Petitioner : Mr. Amar Kumar Sinha, Advocate Mr. Deepak Kumar Dubey, Advocate For the Respondent : Mr. Srijit Choudhary, Advocate

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C.A.V. ON: 12.09.2023 PRONOUNCED ON: 29.09.2023

Instant petition has been filed under Article 227 of the Constitution of India for quashing the order dated 13.03.2019 passed in Title Suit No.185 of 2015 by Civil Judge (Sr. Division-I), Hazaribagh whereby and whereunder under Order XIV Rule 2(2) of the C.P.C. for framing of preliminary issue has been rejected.

2. It is submitted by learned counsel on behalf of petitioner that it is 4th round litigation between same parties, litigating under the same title and same cause of action and the old suits between them, have been heard and decided on merit which has attained finality in Second Appeal. There were several litigations between the Petitioner and the Respondent, which all finally were decided in favour of the Petitioner against Respondent Sunder Ram Raut and title and possession was decided in favour of the Petitioner such as M. Case No.15/1980, T.S 50/82, T.A No. 56/87 and S.A 74 of 1992.

3. Possession of the Petitioner was decided in M. Case No.15/1980 and the revision arising therefrom was dismissed.

4. Father of the Petitioner had purchased the suit land by registered deed of sale dated 27.08.1977, which was duly mutated and his father was accepted as tenant and rent was accepted by the State issuing rent receipts. Mutation case no.183/1977-78 for cancellation of mutation against the father of the Petitioner was dismissed.

5. The respondent- Sunder Ram Raut filed Title Suit No.50 of 1982 for impleading father of the present Petitioner namely Nand Lal Choubey in a suit

for declaration that no title passed to the defendant no.1-Nand Lal Choubey by virtue of sale deed dated 27.08.1977. Further declaration was prayed for title and possession over the land detailed in Schedule A and B of the plaint. The suit was dismissed vide judgment dated 25.08.1987 in T.S. No.50 of 1982. The first appeal arising therefrom was dismissed by 2nd Additional District Judge, Hazaribag vide judgment dated 05.06.1992. The Second Appeal arising therefrom was also dismissed by this Court by terms of order dated 04.03.1994 in Second Appeal No.74 of 1992(R).

6. The respondent filed Title Suit No.43 of 2005 for the very same relief with respect to the same subject matter of suit for declaration of title and possession for the same land and for grant of injunction restraining the defendant from interfering with the possession of the plaintiff. Further, in course of hearing preliminary issue on Res-judicata, Respondent/Plaintiff filed petition for amendment of plaint in order to claim over the suit property by adverse possession. Prayer for amendment was rejected vide order dated 07.06.2008 and the miscellaneous appeal against the order was also rejected. Writ Petition against the order was also dismissed. Finally this suit was permitted to be withdrawn and relief of temporary injunction was rejected. The suit was dismissed as withdrawn vide order dated 27.02.2009 as this suit was hit by principles of res judicata.

7. Title Suit No.33 of 2009 was again filed impleading heir and descendant of Nand Lal Choubey, who was defendant in earlier round of litigations with respect to the same subject matter. In this case, a petition under Order XIV Rule 2 was filed on behalf of the defendant which was allowed and after that the plaintiff withdrew the suit which was dismissed as withdrawn vide order dated 01.06.2011.

8. It is submitted that this is fourth round of litigation and the learned Court below without applying its judicial mind, dismissed the petition by framing preliminary issue of res-judicata and hearing the same without entering into the merit of the case.

9. Learned counsel on behalf of respondents submits that principle of res judicata on same question of facts and law, cannot be disposed of by framing preliminary issue. Reliance is placed on Jamia Masjid Versus Sri K.V. Rudrappa (since dead) by legal representatives & Ors. (2022) 9 SCC 225, (1976) 4 SCC 780 (Syed Mohd. Salie (dead) by LRs. & Ors. Vs.

Mohd. Hanifa (dead) by LRs. & Ors.). It is submitted by learned counsel on behalf of respondent that the suit has been filed on fresh cause of action when the defendant dispossessed the plaintiff/respondent from the settled possession over the suit property. It was this aspect which has been considered by the learned trial Court in the impugned order while rejecting the petition for framing preliminary issue under Order XIV Rule 2 of the CPC that the present suit has been filed for relief and recovery of possession as he was dispossessed on 22/23.07.2015 which has been set out in the relief portion of the present Title Suit.

10. It is submitted by learned counsel on behalf of petitioner that the suit was filed for declaration of title and confirmation of possession by the respondent which was dismissed. The petitioner moved this Court in W.P.(C) No.7638 of 2011 in which this Court passed the order in favour of the petitioner to provide adequate security of raising boundary wall. In contempt petition, following order was passed on 07.03.2014 which reads as under:-

"In view of the above, the opposite party no.2 is directed to file a clear affidavit regarding the date on which the statute of Dr. B.R. Ambedkar was put up on a portion of the petitioner's land and the name(s) of the person(s) who have put the same. The opposite party shall also look to the documents produced by the petitioner as well as of any other person claimed to have any interest in the land vis-à-vis the petitioner's claim that earlier a frivolous suit was filed against him with respect to the said land which was dismissed. The appeal was also dismissed and the Second Appeal in the High Court was dismissed. But even thereafter, in utter disregard of the said judgments and the decrees, obstruction is being created in construction of the boundary wall and the Police protection earlier given for the same purpose has been withdrawn without assigning reason."

11. The parties are involved in a series of litigation is not in dispute. Title suits were decided and attained finality. Possession was also declared in a separate proceeding under Section 145 Cr.P.C. in favour of the petitioner. An unsuccessful attempt was made by the respondent to raise the issue of adverse possession in a suit which was finally dismissed as withdrawn.

12. The matter for consideration before this court is whether there exists any legal impediment to decide an issue of res judicata, before the Court

embarks on yet another full trial in the matter?

13. The learned Court below appears to have rejected the petition without assigning specific reasons for the same on the ground that the Petition was intended to delay the adjudication and that the issue of res-judicata will be decided with other issues.

14. For better appreciation of the issues raised at Bar, Order 14 R (2) is extracted below Order 14 Rule 2 CPC which reads as under:--

Order 14 Rule 2

"(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2) pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

From the above provision it is clear that if the Court is of opinion that the case or part thereof may be disposed of on an issue of law only it may try that issue first if that issue relates to either jurisdiction of the Court or a bar to the suit created by any law for the time being in force. It is settled position of law that res judicata is a question of law. Law on the point has been settled by Hon'ble the Supreme Court in Jamia Masjid (supra) :

27. We are unable to accept the submission of the appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by

this Court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the Court and arguments have been addressed by the contesting sides fully on that basis.

Law has been reiterated in Sathyanath & Ors. v. Sarojamani, (2022) 7 SCC 644 it has been held that the plea of res judicata in appropriate cases may be determined as preliminary issue when it is neither a disputed question of fact nor a mixed question of law and fact. Such finding is what this Court held in Ramesh B. Desai [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638].

15. Here we have a case where the earlier cases being M. Case No.15/1980, T.S 50/82, T.A No. 56/87 and S.A 74 of 1992 have been adjudicated and attained finality. Despite this, the plaintiff has initiated the fresh bout of litigation by filing the present suit. Courts are public institutions and run by public money and judicial time cannot be permitted to be squandered by any party on frivolous litigations. A matter which has been heard and finally decided by the court of competent jurisdiction, the same issue cannot be reagitated. It is settled law that in appropriate cases the issue of res judicata can be heard and decided as preliminary issue. Courts need to be sensitive while handling such matters and not to allow the delaying tactics of any party. In appropriate cases real cost need to be imposed on the erring party. Hon'ble Supreme Court's following observation on the impact of frivolous litigation on litigants must be borne in mind by the learned trial Courts:

Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470

191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing

counsel and preparing them for his claim.

Under the aforesaid facts and circumstance of the case and for the reasons discussed above, the impugned order is set aside and the learned trial Court is directed to frame preliminary issue of res-judicata and to hear and decide the said issue within a period of three months from the date of receipt of this order.