KASHI BAI Vs. SUNDERLAL VAIDH

JUDGEMENT

(1.) Challenging a order, Annexure P/1 dated 3rd January 2006 passed by the Court of the Third Civil Judge, Class-II, Vidisha in civil suit No. 36-A oP2006 rejecting an application filed by the petitioner for grant of temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as CPC) on the ground that the application is not maintainable as it is hit by the principles of res judicata petitioner has filed this petition.

(2.) Petitioner herein has filed the suit in question for declaration of title, possession and permanent injunction with regard to a plot measuring 60 feet x 60 feet situated in Luhangi Mohalla, Vidisha. The original suit was filed by Kashi Baj who has since expired and the present petitioner is pursuing the suit as legal heir of the deceased, Kashi Bai. Initially, an application for injunction under Order XXXIX, Rules 1 and 2, CPC was filed in the suit and the respondent No. 1 filed reply to the said application. However, before orders could be passed on this application for temporary injunction, various applications were filed in the suit, and therefore, the case was adjourned from time to time for deciding the applications. Finally vide order dated 5th July 2005 (Annexure P/4), the application for temporary injunction under Order XXXIX, Rules 1 and 2, CPC filed by the petitioner was rejected on the ground that the parties have filed a series of applications, the suit is pending for more than five years, and therefore, it is better to decide the suit on merit after recording of evidence, and therefore, it is not proper to decide the application under Order XXXIX, Rules 1 and 2, CPC and the same was dismissed.

(3.) When this application was dismissed vide Annexure P/4 dated 5th July 2005 and when the respondent No. 1 started making certain construction in the disputed area, petitioner again moved an application for grant of temporary injunction. This application is now rejected by the impugned order and the only reason indicated by the learned Court for rejecting the application is that the earlier order passed on 5th July 2005 vide Annexure P/4 operates as res judicata. and, therefore, now no injunction can be granted. It has been held by the learned Court that as the application for temporary injunction was earlier rejected on 5th July 2005. no further application for injunction is now maintainable.