Rajesh Kumar vs Rakesh Kumar
2023 Latest Caselaw 501 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 662/2021

1. Rajesh Kumar S/o Shri Hansraj, aged about 46 Years, R/o Saharni, Tehsil Tibbi, at Present R/o House No. 182 Sector No. 11 A, Near Adarsh School, Hanumangarh Junction Tehsil and District Hanumangarh (Raj.)

2. Sarla W/o Rajesh Kumar, aged about 44 Years, R/o Saharni, Tehsil Tibbi, at Present R/o House No. 182 Sector No. 11 A, Near Adarsh School, Hanumangarh Junction Tehsil and District Hanumangarh (Raj.)

----Appellants Versus

1. Rakesh Kumar S/o Shri Patram, R/o Nyolakhi, Tehsil Rawatsar, District Hanumangarh (Raj.)

2. Raghuveer Singh S/o Shri Patram, R/o Nyolakhi, Tehsil Rawatsar, District Hanumangarh (Raj.)

3. Smt. Indu Bala W/o Shri Rakesh Kumar, R/o Nyolakhi, Tehsil Rawatsar, District Hanumangarh (Raj.)

4. Smt. Aruna W/o Shri Raghuveer Singh, R/o Nyolakhi, Tehsil Rawatsar, District Hanumangarh (Raj.)

----Respondents

For Appellant(s) : Mr. B.S. Sandhu Mr. S.K. Shrimali For Respondent(s) : Mr. Trilok Joshi

HON'BLE MS. JUSTICE REKHA BORANA Order 12/01/2023

The present appeal has been filed against the order dated

07.07.2021 passed by the Additional District Judge No.1,

Hanumangarh whereby the application under Order XXXIX Rules 1

& 2, CPC as preferred by the plaintiffs/respondents has been

allowed.

The case of the appellants/defendants is that earlier after

filing of the suit for specific performance of contract, the plaintiffs

preferred an application under Order XXXIX Rules 1 & 2, CPC with

a prayer that the property in question be not alienated and no

charge be created on the said property. During the pendency of

(2 of 5) [CMA-662/2021]

the said application, two subsequent applications under Section

151 CPC were preferred for restraining the defendants from

raising construction on the disputed land. The first application

under Order XXXIX Rules 1 & 2, CPC was finally decided by the

Court on 05.04.2021 whereby the defendants were restrained

from alienating as well as creating any charge over the property in

question. The said order was silent as to raising of the

construction by the defendants meaning thereby the learned Court

had rejected the prayer of the plaintiffs for restraining the

defendants from raising any further construction.

Learned counsel for the appellants submitted that the order

dated 05.04.2021 was never appealed against and therefore, the

same has become final for all purposes. After two months of the

decision on the said application, the second application under

Order XXXIX Rules 1 & 2, CPC has been preferred by the plaintiffs

on the same ground, on the same cause of action and also for the

same relief. Counsel submitted that the same could not have been

entertained by the Court below and the relief as granted could not

have been granted. In support of his submission counsel relied

upon the Hon'ble Apex Court judgment passed in the case of

Arjun Singh Vs. Mohindra Kumar & Ors; Civil Appeal

No.768/1963 [AIR 1964 SC 993] and the Karnataka High

Court judgment passed in the case of K.C. Chandrashekar Raju

Vs. D. Venkatesh & Ors: W.P. No. 378/2006 [ILR 2008

Karnataka 1660].

Per contra, learned counsel for the respondents submitted

that earlier when the applications under Section 151 CPC were

preferred by the respondents, ad interim orders on the same were

passed by the Court and the construction as sought to be raised

(3 of 5) [CMA-662/2021]

by the defendants was restrained. Further when the construction

was not stopped by the defendants, the police assistance was

provided by orders of the Court and the construction was finally

stopped. In pursuance to the said orders, the construction was

stopped and therefore when the first application under Order

XXXIX Rules 1 & 2, CPC was decided, no grievance regarding the

construction remained and therefore, no order was required to be

passed by the court restraining defendants for raising any further

construction. Counsel submitted that it was only because of the

subsequent fact when in the month of June, 2021 the defendants

started raising construction, that a fresh cause of action arose to

the plaintiffs and therefore, the second application under Order

XXXIX Rules 1 & 2, CPC was preferred which cannot be said to be

based on the same set of facts. The second application was based

on the subsequent facts which definitely was a new cause of

action to the plaintiffs and the trial Court rightly exercised its

jurisdiction in entertaining and allowing the same.

Heard learned counsel for the parties and perused the

material available on record.

A perusal of the second application under Order XXXIX Rules

1 & 2, CPC preferred by the plaintiffs makes it clear that in the

said application the averments regarding the earlier applications

being moved, further applications under Section 151 CPC being

moved and ad interim orders being passed by the Court on the

same, have specifically been made. It is not that the said facts

had been concealed from the Court and the second application

was preferred for the same relief.

A perusal of the impugned order makes it clear that the

learned Court had kept into consideration, the earlier order dated

(4 of 5) [CMA-662/2021]

05.04.2021 as well as the subsequent facts. The Court has

reached to a specific finding that the order dated 05.04.2021

could not be read to mean that the Court had admitted the

submission of the defendants regarding the change in nature of

the land. The Court below reached to the following specific

findings: -

"vkns'k esa mDr vkosnu i= dks fuLrkj.k djrs le; vkns'k fn;k x;k Fkk fd izkFkZuk i= dh pj.k la0 2 esa of.kZr d`f"k Hkwfe dks [email protected] fdlh Hkh izdkj ls vU; O;fDr;ksa dks jgu] cS; o eqarfdy ugha djsa] ijarq bldk vFkZ ;g ugha gS fd U;k;ky; us [email protected] ds fdlh dk;Z dks Hkw&ifjorZu ds laca/k esa vizR;{k rkSj ij Lohdkj dj fy;k gksA vr% vf/koDrk [email protected] ds }kjk mBk, x, rdZ fopkj djus ;ksX; ugha ik, tkrs gSaA "

In view of the specific findings of the trial Court it cannot be

concluded that the Court below did not consider the filing of the

earlier application as well as passing of the earlier order dated

5.04.2021. While passing the order dated 29.06.2021, the Court

was very well aware of the earlier order dated 05.04.2021 as well

as the contents of the said order. So far as the judgments relied

upon by learned counsel for the appellants are concerned, the

ratio as laid down by Hon'ble Apex Court in the case of Arjun

Singh (supra) rather specifically lays down that the principle of

res judicata would not apply to the orders of stay, injunction or

receiver which are designed to preserve the status quo pending

the litigation. The Hon'ble Apex Court specifically held that such

orders are certainly capable of being altered or varied by

subsequent applications for the same relief, though normally only

on proof of new facts or new situations which subsequently

emerge. In view of the ratio laid down by the Hon'ble Apex Court,

the controversy in question is specifically governed by the said

ratio wherein a total new cause of action has been pleaded by the

(5 of 5) [CMA-662/2021]

plaintiffs and the same has been adjudicated by the Court below in

terms of law. The judgment of Karnataka High court in the case of

K.C. Chandrashekar Raju (supra) is also on the same lines

wherein it has been provided that if no change of circumstances is

proved, the order passed even at the stage of interlocutory order

will operate as res judicata. The same not being the situation

here, the ratio would not apply to the present matter.

The present appellants does not deserve interference even

on the ground that in the reply to the application under Order

XXXIX Rules 1 & 2, CPC they specifically came up with a case that

no construction, whatsoever, is being raised by them and the

construction, if any, is being raised by their brother who is not a

party to the present litigation.

In view of the specific averments of the defendants

themselves, the arguments now sought to be raised before this

Court that the defendants would suffer hardship because of the

non completion of the construction cannot be held to be tenable

and cannot be taken into consideration by this Court.

In view of the above observations, this Court finds no ground

to interfere in the order impugned and the present appeal is

therefore dismissed.

Stay petition and all other pending applications also stands

dismissed.

(REKHA BORANA),J

77-Dharmendra/-

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