SAJU LADU PALKAR Vs. JOAQUIM ROSARIO DSOUZA

JUDGEMENT

(1.) HEARD Shri Abay Nachinolkar, learned Counsel appearing for the Appellants. The above Appeal challenges the Judgment and Order dated 25.02.2011, passed in Regular Civil Appeal no. 405/2010, whereby the learned Lower Appellate Court has set aside the Judgment passed by learned Trial Judge dated 24.06.2010 passed in Regular Civil Suit no. 12/2009/B and remanded the matter to the learned Trial Judge to decide the suit on all issues on merits keeping in mind the Judgments of this Court as well as of the Apex Court. The learned Trial Judge after perusing the plaint and the written statement filed by the respective parties, framed issues and one of the issues framed was whether the suit was barred by the principles of resjudicata. The said issue was ordered to be decided as a preliminary issue. The learned Trial Judge after hearing the respective parties, came to the conclusion that the suit was barred by the principles of resjudicata and by Judgment and Decree dated 24.06.2010, dismissed the suit filed by the Respondent. Being aggrieved by the said Judgment, an Appeal came to be preferred before the learned District Judge and by the impugned Judgment and Decree dated 25.02.2011, the learned Appellate Court, set aside the Judgment passed by the learned Trial Court and remanded the Court to decide the suit on all issues framed by the Trial Court afresh.

(2.) SHRI Nachinolkar, learned Counsel appearing for the Appellants, has assailed the impugned Judgment essentially on the ground that the Learned Appellate Court had not discussed the material on record to come to the conclusion that the suit was not barred by the principles of resjudicata. Learned Counsel further pointed out that considering the facts in the plaint have been admitted by the defendant, there was no occasion for the learned Appellate Court to hold that any evidence had to be recorded for the purpose of deciding issue no. 5 framed by learned Trial Court. The learned Counsel further pointed out that in the earlier suit filed by the Appellants, an injunction has been granted restraining the defendants therein including the Respondent herein to the effect that the possession of the Appellants in respect of the suit house and some structures adjoining thereto should not be disturbed. Learned Counsel further pointed out that in the present suit, the Appellants are seeking to demolish some structures in the suit property and, as such, according to the learned Counsel, such suit is barred by the principles of resjudicata. The learned Counsel however does not dispute that in the present suit the subject matter of the suit property is the whole property surveyed under no. 95/1 of Tivim Village, Bardez Taluka, whereas in the earlier suit filed by the Appellants, only a portion thereof was the subject matter of the suit. Learned Counsel further pointed out that as the learned Appellate Court has not decided the matter by considering the material on record, the impugned Judgment cannot be sustained and deserves to be quashed and set aside. In support of his submissions, the learned Counsel has relied upon the Judgment of the Apex Court reported in : (2003) 1 S.C.C. 488 in the case of Abdul Rahman vs. Prasony Bai and anr.

(3.) THE learned Lower Appellate Court whilst passing the impugned Judgment has come to the conclusion that the issue of resjudicata is a mixed question of law and fact which has to be decided after recording of evidence. The Lower Appellate Court also found that whilst deciding the said issue no. 5, the learned Trial Court did not have before him either the plaint or the written statement in the earlier suit but only the Judgment passed therein. The Lower Appellate Court further found that on the basis of such material on record it was not open to the learned Trial Judge to decide the claim of resjudicata as claimed by the Appellants. The Lower Appellate Court has also considered the fact that the Apex Court in the Judgment reported in 2008 ALL SCR 1627, has come to the conclusion that an issue of resjudicata can either be decided as a preliminary issue or by deciding the suit on merits. Considering the facts and circumstances of the case, the Lower Appellate Court came to the conclusion that issue of resjudicata cannot be decided in the present case as a preliminary issue. I find no reason to interfere in the impugned Judgment passed by the Lower Appellate Court. It is an admitted position that in the present suit, the suit property is the whole property surveyed under no. 95/1 of Tivim Village. In the present case, it appears that the suit has been filed for demolition of alleged extension by the Appellants. These matters are to be considered only after recording of evidence and giving an opportunity to both the parties to produce the material on record in support of their respective contentions. The learned Trial Judge was not justified to decide issue no. 5 when the plaint or the written statement in the earlier suit was not placed on record. The Lower Appellate Court has rightly appreciated in the facts and circumstances of the case and come to the conclusion that the issue no. 5 be decided afresh after hearing the respective parties. I find no infirmity committed by the Lower Appellate Court whilst passing the impugned Judgment. The Judgment of the Apex Court relied upon by the learned Counsel appearing for the Appellants, in the case of Abdul Rahman vs. Prasony Bai and anr (supra), is not applicable to the facts and circumstances of the present case as there are no admissions on the part of the Respondent as was the case before the Apex Court and the only admission is that one of the parties was a party to the suit filed by the Appellants. In view of the above, I find that there is no merit in the present Appeal, hence the same stands dismissed.