NARAYAN SINGH Vs. BABULAL

JUDGEMENT

(1.) This revision is directed against the order dated 24-8-2011, by which the preliminary objection raised by the petitioner/defendant with respect to the dismissal of the suit, as hit by res judicata has been rejected by the trial Court. The controversy in short is that a Civil Suit was filed by the respondent No. 4 against the petitioner and two others in the Court of V Additional District Judge, Bhopal, seeking a declaration that the sale deed dated 6-10-2001 is void and is not binding on the said plaintiff and a decree of permanent injunction was also claimed. The said suit was contested by the petitioner hereof. Written statement was filed. The issues were framed and the case was fixed for recording of the evidence of the parties. The respondent No. 4/plaintiff failed to produce his witnesses, sought an adjournment by making application and considering all such facts on 4-5-2005, the trial Court reached to the conclusion that there was no evidence available to the respondent No. 4/plaintiff and, therefore, his witnesses were not present before the Court despite granting opportunities on 2-12-2004, 17-12-2004, 17-1-2005, 14-2-2005 and on 13-3-2005. The trial Court thereafter dismissed the suit and directed drawing of a decree. Since the suit was said to be dismissed for want of evidence and not for want of prosecution, same was to be treated as dismissal of the suit under the provisions of Order 17, Rule 2 of the Code of Civil Procedure. It is contended that since no appeal was preferred against such a judgment and decree, it has attained finality and, thus, it was to be held that the respondent No. 4/plaintiff had no merits whatsoever to challenge the sale deed. However, fraudulently, in connivance with others, a second suit was filed in the Court of VIE Additional District Judge, Bhopal, by the respondent No. 4/plaintiff along with respondents No. 1 to 3 for the very same relief, but further alleging that on 27-6-2008, the cause of action accrued to the respondents for filing of the suit and on the basis of subsequent sale deed dated 27-6-2008, the suit was valued at ' 6,48,000/- and filed by the respondents. Upon service of the notice, a written statement was filed by the petitioner opposing the suit and the preliminary objection with respect to res judicata of the suit was raised. The application to this effect was also made, but the same has been dismissed, therefore, the present Civil Revision is required to be filed.

(2.) This Court has entertained the revision, has issued the notices to the respondents and Registry has indicated that all the respondents are served. This fact is duly recorded, but neither anybody has appeared on behalf of respondents to oppose the revision petition nor any reply to the I. A. , for grant of interim relief has been filed. The service report indicates that all the notices were served on one person Shri Babulal Gond. The service of notice of revision petition is to be held good as said Babulal himself is respondent before this Court and if, he has been served with the notice of the revision, he is aware of the proceedings.

(3.) Learned counsel for the petitioner has, vehemently, contended that since on first occasion when the suit filed by the respondent No. 4/plaintiff was being tried, categorical facts were recorded by the Court that despite granting opportunity the respondent No. 4/plaintiff in the first suit was unable to produce the evidence, the suit was liable to be dismissed. However, the Court has drawn a decree and, therefore, it is to be treated as if the suit of the plaintiff/ respondent No. 4 was dismissed on merit and, as such, the second suit would be barred by res judicata. Placing reliance in various law laid down by the Apex Court, it is contended vehemently that if such a situation is pointed but to the Court, it was necessary to examine the law, the provisions and the decisions of the Apex Court and then to decide whether the res judicata would be applicable or not.