Madhya Pradesh High Court
Smt Dolly Suri vs Praveen Sharma on 27 October, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 27 th OF OCTOBER, 2023
MISC. PETITION No. 3812 of 2023
BETWEEN:-
1. SMT DOLLY SURI W/O SHRI NARENDRA SURI,
AGED ABOUT 58 YEARS, OCCUPATION: BUSINESS
R/OE-4/180 ARERACOLONY BHOPALAND ASLO AT
PLOTNO 241-242DYNAMIC CENTER M.P.NAGAR
ZONE 1 BHOPAL (MADHYA PRADESH)
2. SAGAR SURI S/O LATE SHRI NARENDRA SURI,
AGED ABOUT 38 YEARS, OCCUPATION: BUSINESS
R/O E-4/180, ARERA COLONY, BHOPAL AND ALSO
AT PLOT NO. 241-242, DYNAMIC CENTER, M.P.
NAGAR ZONE-1, BHOPAL (MADHYA PRADESH)
3. MS. SONAM SURI D/O LATE NARENDRA SURI,
AGED ABOUT 35 YEARS, OCCUPATION: BUSINESS
R/O E-4/180, ARERA COLONY, BHOPAL AND ALSO
AT PLOT NO. 241-242, DYNAMIC CENTER, M.P.
NAGAR ZONE-1, BHOPAL (MADHYA PRADESH)
4. RAVINDRA KUMAR SURI S/O SHRI OM PRAKASH
SURI, AGED ABOUT 62 YEARS, OCCUPATION:
BUSINESS R/O E-4/180, ARERA COLONY, BHOPAL
AND ALSO AT PLOT NO. 241-242, DYNAMIC
CENTER, M.P. NAGAR ZONE-1, BHOPAL (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI VIKRAM JOHRI - ADVOCATE)
AND
1. PRAVEEN SHARMA S/O LATE VASUDEO SHARMA
RESIDENT OF H-471 ARVIND VIHAR
BAMUGALIYA BHOPAL (MADHYA PRADESH)
2. LE DELIGACY THROUGH PETITIONER 1 TO 3 R/O
GROUND FLOOR, DYNAMIC CENTER, PLOT
NO.241-242, M.P. NAGAR ZONE I, BHOPAL
(MADHYA PRADESH)
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 30-10-2023
19:39:42
2
3. GOSSIP RESTAURANT THROUGH PETITIONERS
R/O GROUND FLOOR, DYNAMIC CENTER, PLOT
NO.241-242, M.P. NAGAR ZONE I, BHOPAL
(MADHYA PRADESH)
4. SONY CENTER THROUGH ARINA PVT. LTD. CO.
R/O SITUATED AT PLOT NO.241-242, DYNAMIC
CENTER, M.P. NAGAR, ZONE I, BHOPAL (MADHYA
PRADESH)
5. ARINA PVT. LTD. CO. THROUGH ITS DIRECTOR
S AQ UI B R/O SITUATED AT PLOT NO.241-242,
DYNAMIC CENTER, M.P. NAGAR, ZONE I, BHOPAL
(MADHYA PRADESH)
6. SMT. NILA RANJIT SHAH W/O RANJIT SHAH,
AGED ABOUT 78 YEARS, R/O 201, SAGARIKA,
OPPOSITE PALM GROVE HOTEL, JUHU TARA
ROAD, JUHU, MUMBAI (MAHARASHTRA)
7. SHRI KARTIK RANJIT SHAH S/O LATE RANJIT
SHAH, AGED ABOUT 56 YEARS, R/O 201,
SAGARIKA, OPPOSITE PALM GROVE HOTEL,
JUHU TARA ROAD, JUHU, MUMBAI
(MAHARASHTRA)
8. SHRI TAPAN RANJIT SHAH S/O LATE RANJIT
SHAH, AGED ABOUT 54 YEARS, R/O 201,
SAGARIKA, OPPOSITE PALM GROVE HOTEL,
JUHU TARA ROAD, JUHU, MUMBAI
(MAHARASHTRA)
9. SMT. KANAN H. JOSHI W/O HITESH JOSHI SHAH
R/O 201, SAGARIKA, OPPOSITE PALM GROVE
HOTEL, JUHU TARA ROAD, JUHU, MUMBAI
(MAHARASHTRA)
.....RESPONDENTS
(BY SHRI VIVEKANAND AWASTHY - ADVOCATE FOR THE RESPONDENT
NO.1)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The sole contention which is raised in this Misc. Petition is that order
dated 21.04.2023, passed by learned Commercial Court/VIII District Judge,
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 30-10-2023
19:39:42
Bhopal, whereby, an application under Order 6 Rule 17 of Code of Civil
Procedure (hereinafter referred to as CPC for short), has been allowed, is
without jurisdiction, inasmuch as, earlier two applications under Order 6 Rule
17 CPC were filed and withdrawn without leave of the Court to file fresh
application.
The only impact which is to be seen herein is that withdrawal of the
earlier applications without seeking leave to file subsequent application for
amendment is maintainable or not ?
Reliance is placed on the judgment of Supreme Court in Satyadhyan
Ghosal and others Vs. Smt. Deorajin Debi and another (AIR 1960 SC
941). Paras 7 & 8 of the judgment read as under :-
7. The principle of res judicata is based on the need of
giving a finality to judicial decisions. What it says is that
once a res is judicata, it shall not be adjudged again.
Primarily it applies as between past litigation and future
litigation. When a matter -- whether on a question of fact or
a question of law -- has been decided between two parties
in one suit or proceeding and the decision is final, either
because no appeal was taken to a higher court or because the
appeal was dismissed, or no appeal lies, neither party will
be allowed in a future suit or proceeding between the same
parties to canvass the matter again. This principle of res
judicata is embodied in relation to suits in Section 11 of the
Code of Civil Procedure; but even where Section 11 does
not apply, the principle of res judicata has been applied by
courts for the purpose of achieving finality in litigation. The
result of this is that the original court as well as any higher
court must in any future litigation proceed on the basis that
the previous decision was correct.
8. The principle of res judicata applies also as between two
stages in the same litigation to this extent that a court,
whether the trial court or a higher court having at an earlier
stage decided a matter in one way will not allow the parties
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 30-10-2023
19:39:42
to re-agitate the matter again at a subsequent stage of the
same proceedings. Does this however mean that because at
an earlier stage of the litigation a court has decided an
interlocutory matter in one way and no appeal has been taken
therefrom or no appeal did lie, a higher court cannot at a
later stage of the same litigation consider the matter again?
Hon'ble Supreme Court has held that the principle of res judicata is
based on the need of giving finality to judicial decisions. What it says that once
a res is judicata, it shall not be adjudged again.
The principle is that when a matter on a question of fact or a question of
law has been decided between two parties in one suit or proceedings and the
decision is final either and no appeal was taken to a higher Court or because the
appeal was dismissed, or no appeal lies, neither party will be allowed in a future
suit or proceedings between the same parties to canvass the matter again.
When examined, since two applications were withdrawn and there was no
final adjudication on those applications admittedly, principles of res judicata will
not be applicable and, therefore, when tested, impugned order cannot be faulted
with.
Petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 30-10-2023
19:39:42
