PRESIDENT SHRI CHATURBHUJ SHARMA SIKSHAN SANSTHAN MAHAVIDYALAY SAMITI ORAI JALAUN Vs. AWADH BIHARI TIWARI ALIAS RAM BABU

JUDGEMENT

(1.) UMESHWAR Pandey, J. Heard learned Counsel for the parties.

(2.) THIS petition challenges the order dated 6-5-2005 passed by the trial Court and order dated 19-12- 2005 passed by the revisional Court. The respondent No. 1 filed a suit for declaration against the petitioners-defendants in which the plaintiff presented an application under Order XI, Rule 12 C. P. C. for discovery of certain documents. Initially the said application was dismissed vide order dated 4-4-2005 (Annexure-6) stating that the application was not supported with affidavit and the defendants petitioners had denied possession of those documents sought to be discovered. Thereafter, a second application stated to be under Section 151 C. P. C. was moved with the same prayer, which has been allowed by the impugned order. THIS application was supported with affidavit. The revisional Court has dismissed the revision of the petitioners stating that the revisional Court would not go into the factual matters and thus, the revision was not found having merits.

(3.) I find force in the reply argument given from the side of respondents. Any order whether interlocutory or not, if has not been passed on merit, it will definitely not operate as res judicata. The aforesaid case law of Division Bench of this Court in the present facts and circumstances would not be applicable. The application was summarily rejected for want of supporting affidavit though, the affidavit in support of such application is not required under the procedure. So-far-as the availability of those documents with the respondents defendants is concerned, the mere observation in the earlier order is that the defendants had denied possession of the same. This point is also not discussed on merit. The second order passed by the Court below is a full-fledged order passed after discussing the entire aspects of the matter and in the present context any bar of res judicata would not be applicable for the purposes to challenge this order.