STATE, THROUGH COLLECTOR, NAINITAL Vs. KUNWAR SEN

JUDGEMENT

(1.) THIS second appeal has been preferred under Section 100 of Code of Civil Procedure, 1908 and directed against the judgment and decree dated 08.07.1980 passed by Mr. K.C. Jain, the then, learned Additional District Judge Nainital, in civil appeal No. 117 of 1979 whereby the trial Court's judgment and order dated 26.07.1979 for recovery of Rs. 2,772/ - was set aside.

(2.) FACTS giving rise to the present appeal are that in the Court Compound of Sub Divisional Magistrate, Kashipur, a canteen was auctioned on 23.03.1974 by the State (plaintiff -appellant) for the F.Y. 1974 -75 and the defendant being highest bidder was given contract to run the canteen for said year on the terms and conditions agreed between the parties. An amount of Rs. 2,140/ -, the Y. amount for which the canteen was auctioned was deposited by the defendant -respondent on the very day i.e. 23.03.1974. Rest of the amounts were to be deposited in further three installments viz. Rs. 2,138/ - by 23.06.1974, Rs. 2,137/ - by 23.09.1974 and lastly Rs. 2,315/ - by 30.12.1974. The defendant -respondent failed to make deposit of last two installments. Consequently, the auction made in favour of the defendant -respondent was cancelled w.e.f. 23.09.1974 and the canteen was re -auctioned in favour of one Suresh Chandra for Rs. 2,000/ - only for the rest of the period. As such the net loss to the State (plaintiff -appellant) was Rs. 2,272/ - for which it appears that recovery proceedings were initiated against defendant -respondent as arrears of the land revenue. Against said recovery, defendant -respondent Kunwar Sen instituted a civil suit No. 18 of 1975 before Munsif, Kashipur which was decreed on 07.05.1977 restraining the State from realizing the sum as land revenue on the ground that there was no agreement between the parties to realize the disputed sum as arrears of land revenue. On this, the State instituted a regular suit No. 213 of 1977 for recovery of Rs. 2,272/ - which was decreed by learned trial Court on 26.07.1979 along with 6% interest per annum. Aggrieved by said decree the defendant -respondent preferred an appeal (civil appeal no. 117 of 1979) which was allowed by the learned lower Appellate Court vide its judgment and order dated 08.07.1980 and the decree of the trial Court was set aside on the ground that the suit No. 213 of 1977 was barred by principle of resjudicata. In the present appeal the State (Plaintiff -appellant) had challenged the said judgment and order dated 08.07.1980.

(3.) THE substantial question of law involved in this appeal is that whether the present suit (No. 213 of 1977) was barred by principle of resjudicata in view of the judgment and decree dated 06.05.1977 passed by learned Munsif, Kashipur between the parties?