FATEH CHAND Vs. MUNSHI RAM

JUDGEMENT

(1.) The plaintiff-respondent Munshi Ram, filed the suit for possession of the suit property on the basis of his ownership. The suit was contested inter alia on the ground that it was barred by the principles of res judicata as in the earlier suit, the plaintiff had failed to prove his ownership. The trial Court came to the conclusion that the present suit was barred by res judicata and consequently dismissed the same. In appeal, the learned Additional District Judge came to the conclusion that the earlier judgment dated April 27, 1976, Exhibit D-2 did not operate as res judicate between the parties because the said judgment passed by the Subordinate Judge was without jurisdiction it being violative of the provisions of Order XVII Rule 3 read with Rule 2 of the Civil Procedure Code (hereinafter called the code). Consequently, the appeal was accepted and the case was remanded to the trial Court for decision on merits. Dissatisfied with the same, the defendant has come up in second appeal to this Court.

(2.) Admittedly, the plaintiff filed the earlier suit for the grant of injunction on the basis of his ownership and possession of the suit property which was dismissed on April 27, 1976. No appeal against the said judgment and decree was filed on behalf of the plaintiff. From the file, it appears that an application for restoration of the case said to have been dismissed for default on April 27, 1976, was filed which was also dismissed on July 31, 1979. A certified copy of the said order is on the file, but it appears that the same was not exhibited in the trial Court. However, it could not be denied that no appeal was filed against the said order also. In the earlier suit there were specific issue as to whether the plaintiff was the owner in possession of the house, in dispute, and whether the defendant was a tenant in the room. It was found by the trial Court on merits after discussing the entire evidence on the record that the plaintiff had failed to prove that he was the owner of the suit property. It was further found that the suit for the grant of the injunction as such was not maintainable because the plaintiff had failed to prove that Fateh Chand defendant was in possession of the room as a tenant under him.

(3.) The learned counsel for the plaintiff-respondent contended that the judgment, Ex. D-2, being without jurisdiction, did not operate as res judicata in the present suit. According to the learned counsel, in the said case, the trial Court could not proceed under Order XVII Rule 3 of the Code.