PURNMASI YADAV Vs. NARBEDESHWAR TRIPATHI

JUDGEMENT

(1.) This appeal was preferred along with an application for condonation of delay. The parties were heard. The delay was for about nine days as it was in time up to 3-1-1994 and the appeal was presented on 12-1-1994. In view of this insignificant delay, the prayer under S. 5 of the Limitation Act stands allowed. The appeal was also heard on merits including a preliminary objection on behalf of the learned counsel for the respondents.

(2.) The appeal is directed against the first appellate judgment and decree dated 23-9-1993 recorded by the District Judge, Gorakhpur in Civil Appeal No. 49 of 1993, which was preferred by the present appellant. The aforesaid civil appeal was dismissed and the decree of rejection of the plaint by the Court below was upheld.

(3.) It appears that the present appellant filed suit No. 318 of 1993 before the civil Judge, Gorakhpur, for a declaration and injunction against the present respondents Nos. 1 to 6 in respect of a particular piece of land. It was prayed therein that a declaration be made that the compromise decree in suit No. 455 of 1993 was void and was not binding on the plaintiff. There was further prayer for injunction so that the execution of the said compromise decree be stayed. The learned Court below took up the prayer for injunction on 1-9-1993 and had considered the objections raised by the defendants in the suit and after a thorough discussion of the cases of the parties, including a defence of the defendants concerning the rent notes, came to the conclusion that the consideration of the documents indicated no prima facie case in favour of the plaintiff. He was further of the view that the suit was of such nature which, from a reading of the plaint, indicated that it was filed mala fide with a view to harass the other party. He relied on a decision of the Supreme Court as reported in 1978 ACJ 22 to hold that the dictum applied fully to the facts of the case. The dictum of the Supreme Court, as quoted by the Trial Judge, was as follows :