Smt. Sunderbai vs Shri Gangaram
2022 Latest Caselaw 14261 MP

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                                            IN THE HIGH COURT OF MADHYA PRADESH
                                                         AT JABALPUR
                                                            MA No. 4836 of 2022
                                             (SMT. SUNDERBAI AND OTHERS Vs SHRI GANGARAM AND OTHERS)

                                Dated : 03-11-2022
                                      Shri Vasu Waswani, learned counsel for the appellants.

                                      This Miscellaneous Appeal under Order XLIII Rule (1)(U) of the Code
                                of Civil Procedure, 1908 is filed by the appellants/defendant Nos.1 to 5 being
                                aggrieved of judgment & decree dated 4.8.2022 passed by learned VII District
                                Judge, Bhopal in Regular Civil Appeal No.74/2022 remanding the matter after
                                setting aside the order of the Trial Court i.e. XIX Civil Judge Class-1, Bhopal

                                passed in Civil Suit No.646A/2017 on 5.10.2019.
                                      It is submitted by learned counsel for the appellants that the learned Civil
                                Judge had accepted the plea of suit being barred by principles of res judicata
                                and had allowed the application under VII Rule 11 of the C.P.C. The plaintiffs
                                filed an appeal in which the impugned order dated 5.10.2019 has been set aside
                                and the matter was remanded to the Trial Court. He also submits that the
                                learned 1st Appellate Court has placed reliance on the judgment of Hon'ble the
                                Supreme Court in Vaish Aggarwal Panchayat versus Inder Kumar &
                                Others AIR 2015 SC 3357 whereas it has overlooked a Larger Bench

                                Decision of Hon'ble the Supreme Court in Suraj Ratan Irani & Others
                                versus Azamabad Tea Company Limited & Others AIR 1965 SC 295
                                whereby in Paragraph No.25, it is held that if the plaintiff whose suit was
                                dismissed in default then that dismissal merely creates a personal bar or
                                estoppel against the particular plaintiff suing on the same cause of action and
Signature Not Verified
  SAN                           leaves the matter at large for those claiming under him. He further submits that
Digitally signed by AMIT JAIN
Date: 2022.11.03 19:10:30 IST   the aforesaid proposition has not been accepted by learned Three Judges Bench
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                                of Hon'ble the Supreme Court and, therefore, once it has come on record that
                                the suit in regard to the same piece of land was filed by the predecessor of the
                                defendant, namely, Parasram Ahirwar against the predecessor of the present set
                                of plaintiff(s) Dhundha and that suit was decreed vide order dated 27.2.1988
                                then it is no more open to the successor of Dhundha to agitate the same issue
                                as to the title and ownership of the land, which stood concluded in Regular
                                Civil Suit No.16A/1988 as was decided by learned IV Additional Civil Judge
                                Class-II, Bhopal vide judgment and decree dated 27.2.1988.
                                       Issue notice to the respondents on payment of process fee by registered

A/D post within seven days. Notice be made returnable within four weeks.

Also heard in I.A.No.12158/2022 for stay. As an interim measure, it is directed and effect and operation of judgment and decree dated 4.8.2022 passed by learned VII District Judge, Bhopal in Regular Civil Appeal No.74/2022 shall remain stayed till next date of hearing.

List this case after service of notice to the respondents.

(VIVEK AGARWAL) JUDGE

amit

Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2022.11.03 19:10:30 IST