SMT.POONAM SHUKLA & OTHERS Vs. KHEMCHAND JAIN

JUDGEMENT

(1.) The petitioners are defendants before the trial Court. The trial Court by the impugned order rejected the application filed by the petitioners/defendants under Order 26, Rule 9 of the CPC holding that the petitioners' similar application has been rejected by order dated 7.5.2016 and suit is pending since 26.8.1993. Against which, this writ petition under Article 227 of the Constitution of India has been filed.

(2.) Mr. Hari Agrawal, learned counsel appearing for the petitioners, would submit that there is serious dispute regarding identity of land between the parties and unless the Commissioner is appointed, no effective decree can be passed. He would further submit that dismissal of earlier application would be a bar to entertain the second application.

(3.) Mr. Pallav Mishra, learned counsel appearing for the respondent, would submit that rejection of earlier application claiming similar relief at the earlier stage of the suit would bar by the provisions of res-judicata and as such, second application is not maintainable particularly when there is no dispute regarding identity of land between the parties.