RAJ RANI JAIN Vs. RAVEESH CHAND JAIN

JUDGEMENT

(1.) THIS petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order of the trial court dated 7.6.2013 which has dismissed the application filed by the petitioner/plaintiff under Order XII Rule 6 CPC. The application under Order XII Rule 6 CPC was filed in a suit for recovery of possession and damages with respect to a portion of the property bearing no. 119, Bahubali Enclave, Delhi and which portion is in unauthorized occupation of the respondent/defendant and is shown in red colour in the site plan filed.

(2.) THE case of the petitioner/plaintiff is that she is the mother of the respondent/defendant and she is the owner of the entire suit property. Respondent /defendant has unauthorisedly occupied the rear portion of the property of the ground floor comprising of two rooms, toilet, bathroom and kitchen as shown in red colour in the site plan. Petitioner/plaintiff/mother states that the issue with respect to the ownership of the petitioner/plaintiff of the suit property and that defendant has no ownership rights in the suit property was decided against the respondent/defendant by the judgment and decree of the trial court/ADJ Delhi dated 8.9.2003 and the appeal filed by the respondent/defendant in this Court being RFA No.873/2003 was dismissed vide judgment dated 12.9.2011. Consequently, the respondent/defendant is stated to be in illegal possession of the suit property. By averring finality with respect to the defences which are pleaded by the respondent/defendant as per the written statement, in view of the judgment dated 12.9.2011 in RFA No.873/2003, the subject application under Order 12 Rule 6 CPC was filed.

(3.) I am indeed surprised at the reasoning and conclusions which are given by the trial court which does complete injustice to the application filed by the petitioner/plaintiff. For some unaccepted reasons, the trial court has avoided to refer to the aspect of binding nature of the earlier judgment between the parties dated 12.9.2011 passed in RFA No. 873/2003. The judgment dated 12.9.2011 operates as res judicata between the parties. All aspects therefore which are sought to be urged by the respondent/defendant by means of the written statement in the present suit either stand decided against the respondent/defendant in terms of the judgment dated 12.9.2011 or the respondent/defendant is prevented by the principle of constructive res judicata in arguing his claim of ownership in the suit property. At this stage, it is necessary to refer to the relevant paragraphs being 2 to 8 of the judgment of this Court dated 12.9.2011 in RFA No.873/2003 which holds that respondent/defendant has no ownership rights in the suit property, and which paras read as under: -