Telangana High Court

M/S. Nalgonda Diocese Society vs Smt. Vallambatla Ramadevi on 10 April, 2023

Bench: K.Lakshman

               HON'BLE SRI JUSTICE K. LAKSHMAN

           CIVIL REVISION PETITION No.220 OF 2023
ORDER:

Heard Mr. C. Hanumantha Rao, learned counsel for the

petitioners.

2. This revision is filed challenging the order dated 22.12.2022

in O.S. (SR) No.1600 of 2022 passed by the learned Principal Junior

Civil Judge, Nalgonda.

3. FACTS:

i) The petitioners herein have filed a suit vide O.S. (SR)

No.1600 of 2022 against the respondents seeking perpetual injunction

restraining them or their servants etc., from interfering with the

possession of the petitioners over the suit schedule property i.e., land

admeasuring Acs.4-07 guntas in Survey No.134, situated at Nalgonda

Revenue Village, Mandal and District. The learned Principal Junior

Civil Judge, Nalgonda (hereinafter referred to as 'Court below') has

raised the following objections:

"1. For filing power of Attorney in the representative capacity should be filed under Rule 12 of CRP.

2. An appeal is pending before the Hon'ble High Court and a suit is tried by the Hon'ble I Addl. Dist. & Sessions Judge, Nalgonda

KL, J CRP No.220 of 2023

on the same matter. How the suit is maintainable against the same subject matter. Be explain."

ii) With the aforesaid objections, the matter was posted for

hearing 20.12.2022, on which date, learned counsel for the petitioner

made his submissions on the aforesaid objections. Vide order dated

22.12.2022, the Court below returned the plaint with the following

order:

"Heard learned counsel for the plaintiff. Perused the decisions filed by learned plaintiff counsel. The decisions relied by learned plaintiff counsel are showing that a fraudulent decree need not be looked into by any court at any stage. However, plaintiff in his pleadings at para no.5 specifically stated that defendants herein had filed suit in OS No.95/2014 with respect to same suit schedule property as of the present suit before I ADdl. District Judge, Nalgonda and they obtained a fraudulent decree.

Further, plaintiff in his pleadings at para no.6 stated that he had preferred an appeal against the judgment in OS No.95/2014 before Hon'ble High court in A.S. No.725/2019 pending for consideration. Hence, from the pleadings of plaintiff itself it is clear that a decree and judgment is already existing in favour of defendant no.1,

KL, J CRP No.220 of 2023

with respect to same property and between same parties and with same matter in issue. Since, appeal is the continuation of suit and since the matter was already decided in OS.No.95/2014 and as the decree in OS.No.95/2014 is not declared as fraudulent by any court, the decree is still in force. Hence, the present suit is barred under principle of resjudicata. Hence, suit is returned."

iii) Challenging the aforesaid order, the petitioners herein have

filed the present revision.

4. Respondent No.1 had filed a suit vide O.S. No.95 of 2014

against the petitioners herein for declaration of title and perpetual

injunction in respect of the plaint schedule property i.e., agricultural

dry land measuring Acs.3-04 guntas in Survey No.134, situated at

Nalgonda Revenue Village, Mandal and District. The said suit was

decreed on 30.08.2019.

5. Feeling aggrieved and dissatisfied with the said judgment

and decree, the petitioners herein have preferred an appeal vide A.S.

No.725 of 2019 and the same is pending before this Court. During

pendency of the said appeal, the petitioners herein have filed the

KL, J CRP No.220 of 2023

aforesaid OS (SR) No.1600 of 2022 against the respondents herein for

perpetual injunction.

6. Mr. C. Hanumantha Rao, learned counsel for the petitioners,

would submit that the suit schedule property in O.S. No.95 of 2014 is

different from the suit schedule property in the present suit, O.S. (SR)

No.1600 of 2022. The impugned order dated 22.12.2022 of the Court

below returning the plaint is contrary to the observations made in the

judgment dated 30.08.2019 in O.S. No.95 of 2014. The land of the

petitioners herein is different from the land of respondent No.1 and the

same is admitted fact and is evident from the common order dated

28.04.2017 in C.M.A. Nos.327 and 391 of 2017 and order dated

25.09.2018 in C.R.P. No.6705 of 2017.

i) He would further submit that the observations of the Court

below that the sale deeds stands in the name of the petitioners were

not challenged so far by anybody and the Court below cannot observe

that the judgment and decree in favour of respondent No.1 is with

respect to the same property. The Court below without appreciating

the contention of the petitioners that the injunction was granted to

respondent No.1 in O.S. No.95 of 2014 as per her contention that the

KL, J CRP No.220 of 2023

property of the petitioners herein is separate and Court below ought to

have entertained the suit for perpetual injunction filed by the

petitioners basing on the cause of action dated 15.12.2022.

ii) He would further submit that the Court below failed to

appreciate that respondent No.1 had clearly admitted that the land of

respondent No.1 i.e., Acs.3-04 guntas in Survey No.134 is separate

from the land Acs.4-07 guntas of the petitioners and that the Court

below ought not to have granted the relief in O.S. No.95 of 2014 and

ought to have entertained the suit when the suit property is different

from the property of respondent No.1 and the suit for perpetual

injunction is permissible.

iii) He would further submit that respondent No.1 has obtained

the aforesaid judgment and decree in O.S. No.95 of 2014 by playing

fraud and it is a fraudulent decree.

iv) He has also placed reliance on the principle laid down by

the Hon'ble Supreme Court in Satyapal Anand v. State of Madhya

Pradesh1.

. (2016) 10 SCC 766

KL, J CRP No.220 of 2023

7. In view of the aforesaid contentions, it is relevant to extract

the suit schedule property in both the suits and the same is as under:

O.S. No.95 of 2014: Agricultural dry land measuring Ac.3-04 guntas in Survey No.134, situated at Nalgonda Revenue Village, Mandal and District, and bounded by:

North : Agriculture land of Nalgonda Diocese Society; South : Land of Dr. Louise Pezzoni and Fr.Anthoni in Survey No.134;

East : Agriculture land in Survey No.136; and West : Road leading to Duppalapally from Nalgonda.

O.S. (SR) No.1600 of 2022: All that part and parcel of land bearing Survey No.134, admeasuring an extent of Acs.4-07 guntas, situated at Nalgonda Revenue Village, Mandal and District, and bounded by:

    North    : Land of plaintiff No.1;
    South    : Houses and Leprosy Center plots;
    East     : Land bearing Survey No.136 & park; and
    West     : Road of M. Duppalapelli.

8. As discussed above, earlier suit vide O.S. No.95 of 2014 was

filed by respondent No.1 herein against the petitioners seeking

declaration of title and perpetual injunction in respect of the plaint

schedule property therein. The said suit was decreed on 30.08.2019.

Feeling aggrieved by the same, the petitioners herein have filed an

appeal vide A.S. No.725 of 2019 before this Court and the same is

pending. During pendency of the said appeal, the petitioners herein

KL, J CRP No.220 of 2023

have filed the aforesaid suit vide O.S. (SR) No.1600 of 2022 against

both the respondents herein seeking for perpetual injunction. Thus,

the petitioners and respondent No.1 are common in both the suits.

Survey Number and Village are also common. In the earlier suit, the

extent of land is Acs.3-04 guntas, whereas in the present suit, the

extent of land is Acs.4-07 guntas. The boundaries are also common.

Therefore, the petitioners herein cannot contend that the suit schedule

property in the earlier suit is different from the suit schedule property

in the present suit.

9. Considering the said facts only, the Court below returned the

plaint on the ground that judgment and decree are in existence in

favour of respondent No.1 with respect to the same property between

same parties and the matter in issue is also same. Since appeal is

continuation of suit and since the matter was already decided in O.S.

No.95 of 2014 and as the decree in O.S. No.95 of 2014 is not declared

as fraudulent by any Court, the said decree is still in force. Therefore,

the second suit is hit by the principle of 'res judicata'. Thus,

according to this Court, there is no error in the said order dated

22.12.2022 passed by the Court below.

KL, J CRP No.220 of 2023

10. With regard to the contention of Mr. C. Hanumantha Rao,

learned counsel for the petitioner that respondent No.1 had obtained

the aforesaid decree by playing fraud, the same cannot be considered

by the Court below in the second suit and the appellate Court in A.S.

No.725 of 2019 has to consider the said aspect. Therefore, the said

contention of learned counsel for the petitioners cannot be accepted.

11. With regard to the first contention that the suit schedule

property in the earlier suit and the suit schedule property in the present

suit are different and the same are evident from the

findings/observations made by this Court vide common order dated

28.04.2017 in C.M.A. Nos.327 and 391 of 2017 and order dated

25.09.2018 in C.R.P. No.6705 of 2017. In O.S. No.95 of 2014,

respondent No.1 had filed an Interlocutory Application vide I.A.

No.1029 of 2014 under Order - XXXIX, Rules - 1 and 2 of CPC

seeking interim injunction against the petitioner herein, whereas the

petitioners herein had filed an application vide I.A. No.1647 of 2016

under the very same provision seeking interim injunction against

respondent No.1 herein. The Court below vide common order

19.01.2017, allowed I.A.No.1029 of 2014 filed by respondent No.1

KL, J CRP No.220 of 2023

herein and dismissed I.A. No.1647 of 2016 filed by the petitioners.

Feeling aggrieved by the same, the petitioners herein have preferred

appeals vide C.M.A.Nos.327 and 391 of 2017 before this Court, and

the same were disposed of by way of common order dated 28.04.2017

directing the parties not to interfere with the possession of each other

till disposal of O.S.No.95 of 2014 and the trial Court was directed to

dispose of the main suit within six (06) months from the date of

receipt of a copy of the said order.

12. It is relevant to note that in the said suit also, respondent

No.1 herein has filed an application vide I.A.No.851 of 2017 in

O.S.No.95 of 2014 under Order - XXVI, Rule - 9 of CPC seeking

appointment of advocate commissioner to measure and demarcate the

entire land in Survey No.134. The Court below vide order dated

11.10.2017 dismissed the said petition. Feeling aggrieved by the said

order, respondent No.1 herein had filed a revision vide C.R.P.

No.6705 of 2017 before this Court, and this Court dismissed the said

revision observing that when there is no dispute with regard to identity

or boundaries of suit schedule property, there is no necessity to

appoint an Advocate Commissioner. However, finally, the learned I

KL, J CRP No.220 of 2023

Additional District Judge at Nalgonda had decreed the said suit O.S.

No.95 of 2014 on 30.08.2019. Therefore, the aforesaid orders were

merged in the said judgment and decree. In view of the same, the

petitioners cannot rely upon the findings given by this Court in the

aforesaid CMAs as well as CRP. Thus, the said contention of the

learned counsel for the petitioners is unsustainable.

13. With regard to the contention that suit schedule properties

in both the suits are different and the same is evident from the order

dated 08.08.2017 in W.P. No.26189 and 26201 of 2017 and judgment

dated 01.02.2022 in W.A. No.660 of 2021 and judgment dated

03.03.2022 in W.A. No.64 of 2022. But, the proceedings in the said

writ petitions and the writ appeals are in relation to the provisions of

ROR Act and, therefore, the same cannot be relied upon by the

petitioners to contend that the suit schedule properties in both the suits

are different. The proceedings in the said writ petitions and writ

appeals and the proceedings in the aforesaid two suits are different.

14. Mr. C. Hanumantha Rao, learned counsel for the

petitioners, has referred paragraph No.3 of the judgment dated

20.08.2019 in O.S. No.95 of 2014 to contend that suit schedule

KL, J CRP No.220 of 2023

property in both the suits is different. The same are pleadings in

written statement of defendant No.1 therein. He cannot refer

pleadings and contend that the suit schedule property in both the suits

is different.

15. As discussed above, the earlier suit for declaration and

perpetual injunction was a comprehensive suit and the same was

decreed in favour of respondent No.1 and against the petitioners

herein. Therefore, the petitioners have to wait for the outcome of

A.S.No.No.725 of 2019 and they have to take all the aforesaid

contentions in the said A.S. No.725 of 2019. Instead of doing so, they

have filed the present suit contending that the suit schedule property in

both the suits are different and the said contention cannot be accepted.

16. It is relevant to note that Section - 11 of the C.P.C. deals

with 'res judicata' and it has eight (08) explanations and the same are

relevant for the purpose of present revision and, therefore, the same is

extracted as under:

"11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or

KL, J CRP No.220 of 2023

between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

KL, J CRP No.220 of 2023

Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.--An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."

17. In Syed Mohd.Salie Labbai (dead) by L.Rs., v. Mohd.

Hanifs (dead) by L.Rs., the Hon'ble Supreme Court held that

KL, J CRP No.220 of 2023

applying the doctrine of res judicata, the following requirements are

essential:

       i)      litigating parties must be the same;
       ii)     the subject-matter of the suit also must be identical;
       iii)    the matter must be finally decided between the parties;
       iv)     the suit must be decided by a court of competent
               jurisdiction.

18. As discussed above, parties in both the suits are common

except respondent No.2 in the second suit who is the husband of

respondent No.1. The subject matter is also identical and it was

decided finally between the parties and first appeal is pending. It is

not the case of the petitioners that the Court below which has decreed

the earlier suit O.S.No.95 of 2014 is not the competent Court and, in

fact, it is a competent Civil Court and decreed the said suit.

Therefore, in the present case, all the aforesaid four essential

ingredients are there and, therefore, the same were considered by the

Court below in the impugned order dated 22.12.2022. There is no

error in it.

KL, J CRP No.220 of 2023

19. In Malluru Mallappa (D) thr. LRs v. Kuruvathappa2,

the Apex Court held as under:

"14. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re- hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.3, Madhukar and others v. Sangram and Others4, B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another5, H. K. N. Swami v. Irshad Basith (Dead) By Lrs.6 and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar7(2001) 3 SCC 179 (2001) 4 SCC 756 (2011) 15 SCC 476 (2005) 10 SCC 243 (1980) 4 SCC 259."

. (2020) 4 SCC 313

KL, J CRP No.220 of 2023

20. Thus, the proceedings in the first appeal i.e., A.S. No.725

of 2019 are continuous proceedings in O.S. No.95 of 2014. As

discussed above, whether respondent No.1 has obtained the aforesaid

decree in O.S. No.95 of 2014 by playing fraud is the matter to be

decided by the appellate Court in A.S.No.725 of 2019 and it cannot be

considered by the Court below in the second suit. The Court below

has considered the aforesaid aspects in the impugned order dated

22.12.2022 and returned the plaint. The Court below was perfectly

right in returning the plaint on the ground that the present suit is hit by

doctrine of res judicata and there is no error in it. The petitioners