Uttarakhand High Court
Mr. Arvind Vashistha vs Shyam Sunder on 15 November, 2021
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
SA No.93 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Arvind Vashistha, Senior Advocate
assisted by Mr. Imran Ali, Advocate for the
appellant.
Mr. B.S. Negi, Advocate for the caveator.
Brief facts are, that initially Suit No.40 of
2002 Krishnawanti vs. Shyam Sunder, was
instituted by the plaintiff therein it was prayed for
the grant of decree of permanent injunction. The
suit was dismissed on 27.05.2005 and later on, on a
challenge being given in an appeal being Civil
Appeal No.72 of 2006 Hem Raj (deceased) vs.
Shyam Sunder and Others, the appeal too was
dismissed.
In a subsequent suit being Suit No.110 of
2007 on 27.04.2007 Satish Chandra and another
vs. Shyam Sunder and Others, which was
preferred by the two plaintiffs, who claim their
rights to have succeeded from plaintiff of Suit
No.40 of 2002, had filed a suit for the grant of
decree of permanent injunction, which was
dismissed by the judgment of 19.08.2008 and later
on the same when it was put to challenge in a Civil
Appeal No.47 of 2006, Satish Chandra and
another vs. Shyam Sunder and Others, the appeal
was dismissed for want of prosecution by the court
of Ist Additional District Judge, by judgment and
order dated 30.05.2016. The second set of
proceedings too, as decided by the judgment of
30.05.2016 by the Court of Ist Additional District
Judge, Udham Singh Nagar has attained finality.
In fact, the issue which has been dragged up
now, in the present second appeal emanates from a
third suit being Suit No.133 of 2010 Ashok Kumar
vs. Sanjay Grover and others. Ashok Kumar
happens to be one of the sons of the principal
plaintiff of suit no.40 of 2002. It is this suit, which
has been concurrently decided in favour of the
plaintiff/respondent herein, which has been put to
challenge by the defendant/plaintiff, who claims his
rights to be flowing from the decree holder of the
initial suits.
It has been argued that principally the third
suit being Suit No.133 of 2020, preferred by
defendant/respondent herein would be barred by the
principles of res-judicata, in view of the earlier
judgments rendered in Suit No.40 of 2002 and Suit
No.110 of 2007.
The matter requires scrutiny.
Respondent no.1 is has put in appearance
through Mr. B.S. Negi, Advocate.
Let notices be issued to respondent nos.3 to
6.
Admit the second appeal on the substantial
question of law nos.1, 2 and 3 as framed.
"1. Whether the suit for cancellation of
sale deed based upon title is barred by
principles of Res-judicata?
2. Whether the court fee paid for
cancellation of sale deed was deficient and
suit is liable to be dismissed on this ground
alone?
3. Whether the appellant court failed to
exercise jurisdiction vested in him under
Order XLI Rule 31 CPC?
The appellant would take steps within a
period of one week from today.
Till next date of listing, parties to the second
appeal are directed to maintain status quo, qua the
nature and title of the property in question.
List thereafter.
(Sharad Kumar Sharma, J.)
15.11.2021
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