BAY ISLAND HOTEL LIMITED Vs. LIEUTENANT GOVERNOR

JUDGEMENT

(1.) The challenge by way of the present petition under Article 227 of the Constitution of India is to an order dated September 3, 2010 passed by the suit Court on an application under Order 14 Rule 2 of the Code of Civil Procedure. Two principal grounds have been canvassed by the petitioner company, which is the seventh defendant in the suit. It is submitted that the suit is ex facie barred by limitation by reason of Article 58 of the Schedule to the Limitation Act, 1963. The other ground is that in view of the concluded decisions in earlier writ proceedings instituted by the plaintiff in the suit and the petitioner herein, the matters in issue in the suit Could no longer be proceeded with by reason of the principles of res judicata. The claim in the plaint is that the plaintiff came to these islands in or about 1970 and took possession of a small plot of land at Phoenix Bay whereupon he made a construction. The plaintiff has referred to an eviction case instituted by the revenue authorities against the plaintiff in 1974, There is considerable doubt as to the authenticity of the documents in relation to the 1974 case that the plaintiff has relied upon. The plaint has recorded the institution of subsequent eviction proceedings in 1986 and in 1990. The plaintiff has claimed that divers representations were made by the plaintiff to the revenue and other authorities for regularization of the plaintiffs possession in respect of the land since the plaintiff was entitled to the benefit under the 1987 scheme as a pre-1978 encroacher.

(2.) The plaint narrates the 1974 eviction proceedings, the 1986 eviction proceedings and the 1990 execution order. Against the order passed in execution of the eviction order on June 21, 1990, the plaintiff carried a writ petition to this Court and such application was not entertained on the ground that the earlier order of eviction of October 17, 1986 had not been questioned before any competent forum. The order dated September 19, 1995 passed in C.O.No. 15051(W) of 1990 recorded that the order impugned in such proceedings was merely for the execution of the order that had earlier been passed. This court held that unless the order of eviction was set aside the same had become binding and executable.

(3.) In view of the observations of the writ Court and the Appellate Court, the plaintiff preferred an appeal before the Sub-Divisional Officer against the order of eviction on 1986. The appeal was dismissed and a second appeal was preferred. The plaint says that the second appellate authority refused to take any action thereon.