GAJRAJ SINGH Vs. ATUL KUMAR AND 3 OTHERS

JUDGEMENT

(1.) Heard Sri T.P. Singh learned Senior Counsel assisted by Sri Ramesh Singh learned counsel for the plaintiff petitioner. Sri G.K. Gupta has filed caveat on behalf of the defendant respondent no. 3. However he is not present when this matter is being taken in the revised call.

(2.) This writ petition is directed against the order dated 12.07.2013 passed by the Additional District Judge, Auraiya in Misc. Appeal No. 03 of 2010 (Atul Kumar and others Vs. Gajraj Singh) whereby the appellate court has set aside the order dated 22.02.2010 passed by the Trial Court granting temporary injunction to the plaintiff petitioner during the pendency of the suit.

(3.) According to Sri T.P. Singh learned Senior Counsel the appellate court has misled itself in holding that the principal of res judicata (Section 11 CPC) will apply for the purpose of considering the application for temporary injunction inasmuch as in Suit No. 320 of 2007 (Gajraj Singh Vs. Krishna Kumar) the injunction application filed by the petitioner was rejected. He submits that such rejection was in a suit between Gajraj Singh and Krishna Kumar and not between Gajraj Singh and the present respondent. According to him the present suit being Suit no. 512 of 2009 has been filed by the petitioner Gajraj Singh against the present respondent who are the purchaser from the deceased Krishna Kumar by the sale deed dated 06.11.2009. According to Sri T.P. Singh the Suit no. 320 of 2007 which was filed by the petitioner against Krishna Kumar was initially for grant of permanent injunction but subsequently the sale deed dated 06.11.2009 has been assailed in that suit by amending the plaint. In the meantime Krishna Kumar died and the plaintiff petitioner impleaded the present respondents who were purchasers from Krishna Kumar. According to him the subject matter of the sale deed of 1984 executed by Shrikant is also the subject matter of sale deed dated 06.11.2009 executed by Krishna Kumar son of Shrikant. He therefore states that the view of the appellate court that principal of res judicata will apply is perverse and liable to be set aside.