HAFIZULLA Vs. PURAN CHAND JAIN

JUDGEMENT

(1.) This is an application for review under Order 47 Rule 1 and 2 of the Code of Civil Procedure to review the judgment and decree dated 01-02-2017, passed in F.A.No.1194/2011, whereby the appeal filed by the appellant has been dismissed affirming the judgment and decree dated 02-12- 2011, passed by IIIrd Additional Judge to the Court of District Judge, Jabalpur, in Civil Suit No.3-A/2010, whereby the learned trial court has dismissed the suit for title and mesne profit with regard to the disputed premises. This court while dismissing the appeal framed two issues whether the findings of S.A.No.813/1995 decided vide judgment dated 12-05-1997 shall have the effect of Res- judicata in the instant suit and whether the appellants/plaintiffs are entitled for claiming mesne profit from the defendants.

(2.) Learned counsel for the appellants submitted that this court has failed to take into consideration certain facts and the provisions of law and therefore, there is no error apparent on the face of record, which warrants review of the impugned judgment and decree. In support of his submissions, he referred the provisions of Section 111(d) of Transfer of Property Act and submitted that the judgment rendered in the earlier case would not operate as Res- judicata in the present case. He submitted that the present suit is based on the question of title and fresh cause of action under Section 12(i)(f) of the Act.

(3.) In support of his submissions, learned counsel for the applicants submitted that this court has failed to take into consideration the law laid down by the Apex Court in the case of AIR 2012(SC)1485 Rattiram and others Vs. State of M.P. Through Inspector of Police and AIR 2011 (SC)1989, Narmada Bachao Andolan Vs. State of M.P. And another, which has laid down the law on the subject matter by Per Curium Doctrine and which the finding rendered in Second Appeal in para 25 of the judgment is Per Curium Doctrine. It is further submitted that the court has further failed to take into consideration paras 18 and 19 of the judgment passed by the Apex Court in the case of Union of India & Anr. Vs. Manik Lal Banerjee AIR 2006(SC) 2844. It has further been submitted that the courts below has erroneously dismissed the suit on applying the principles of res-judicata and this court also erred by dismissing the appeal without taking into consideration the law laid down by the Apex Court in the case of Y. Satyanarayan Reddy Vs. Mandal Revenue Officer, AIR 2010(SC) 1440, whereby it has been held that the dismissal of the Special Leave Petition in limine does not mean with the reasoning of the judgment of the High Court, against which Special Leave Petition is filed has also been affirmed and the Doctrine of Per Curium does not apply in such cases.