MANI RAM SARAN Vs. RAM KAUR BEHARI LAL

JUDGEMENT

(1.) THE only question involved in this Civil 2nd Appeal is whether the dismissal of a writ petition after considering the objections filed by the respondents and hearing the parties operates as resjudicata in a subsequent proceeding involving the same question. The facts giving rise to the question are these.

(2.) THE appellant was a tenant of shop no. 1 -C situate Ware -house, Jammu belonging to the State Government - the official respondent herein. Sometime in April, 1974 the appellant handed over the possession of this shop to respondent 2 purportedly as a licencee. Since the licencee did not surrender possession, a suit for mandatory injunction was filed by the appellant in the year 1976. During the pendency of this suit the government vide order No: 297 -O&N of 1976 dated 06 -08 -1976 allotted the shop to respondent 3. The suit was dismissed by the court of City Judge, Jammu on 19 -08 -1978, holding that it is not maintainable in view of the Government Order No. 297 - O&N of 1976 (supra). Decree was up -held by the District Judge, Jammu while dismissing the appeal on 10 -05 -1980. The appellant challenged the dismissal of the suit in civil 2nd appeal which was allowed by this court on 04 -06 -1986. While allowing the civil 2nd appeal this court permitted the appellant to amend the suit in order to challenge the government order impugned by impleading the State and otherâ„¢s as defendants. Accordingly appellant filed amended suit in August, 1986. The suit was resisted by the respondents on various grounds including the one at it is barred by the principle of resjudicata. Both the trial court as well the 1st Appellate Court found the suit is barred by the principle of resjudicata because the appellant having unsuccessfully challenged the government order (supra) allotting the shop to respondent 3 is prevented from questioning the same order in the suit.

(3.) MR . R.K. Kotwal appearing for the appellant has vehemently argued that since the writ petition was not decided on merits, therefore, the doctrine of resjudicata is not even distantly attracted. He further argued that even though the respondent had filed the objections against the maintainability of the petition yet no finding was returned by the writ court, in the absence of which the principle of resjudicata cannot be invoked.