SIVASANKARAN Vs. RAJAGOPALAN

JUDGEMENT

(1.) THE grievance of the review petitioner is that, while disposing of the Original Petition, all the contentions raised by the review petitioner were not taken note of by the Court. It is also submitted that the application in which the impugned order was passed by the court below is barred by res judicata in view of the dismissal of another application filed by the respondent for the same relief.

(2.) THE suit is for partition. Rajagopalan (the respondent) filed the suit claiming one-fourth share. A preliminary decree was passed as per Ext.P1 judgment dated 18.3.1989. THE claim of the second defendant for equity/reservation in respect of a house allegedly constructed by him was negatived by the trial court. THE second defendant filed appeal. THE Appellate Court granted equity in favour of the second defendant in respect of the house, after finding that the house was constructed with the funds of the second defendant and that the other co-owners did not contribute any money for the construction of the house. THE plaintiff filed S.A.No.747 of 1993, which was disposed of as per Ext.P2 judgment dated 18.3.1994, confirming the judgment and decree of the District Court. It was held that the learned District Judge was justified in holding that the disputed house and the land appurtenant thereto have to be set apart to the share of the second defendant, as far as possible, at the time of final decree.

(3.) THE respondent in the Review Petition appeared in person. He submitted that the principles of res judicata will not apply. I.A.No.1773 of 1997 was filed by the plaintiff for an injunction restraining defendants 2 and 3 from evicting the plaintiff from the house. THE court below did not consider that request on the merits. THE court below passed Ext.P3 order dismissing I.A.No.1773 of 1997, erroneously thinking that the application was for an injunction restraining defendants 2 and 3 from taking income. THE respondent (Rajagopalan) submitted that res judicata would apply when a decision was rendered on the merits. No decision was rendered by the Court earlier in point of time on the merits of the prayer for injunction restraining defendants 2 and 3 from evicting the plaintiff from the house. Technically speaking, I.A.No.1773 of 1997 was dismissed and the appeal therefrom was dismissed on the ground of delay. THE respondent submits that it would not operate as res judicata, in so far as the present application is concerned.