VEERU Vs. SAMUAL

JUDGEMENT

(1.) IS appellantâ„¢s suit (83/civi)/82) barred under provisions of Order 23 Rule 1 (3) CPC and also by principles of Res -judicata? The trial court held it barred under Order 23 Rule 1 (3) and declined to operate the bar of Res -judicata. The lower appellate court revised the position and dismissed the suit after applying bar of Res -judicata. The judgments of two courts below make an interesting reading and exposes the wayward approach adopted in dismissing the suit of the appellant.

(2.) APPELLANT filed a suit (No: 89/1991) for mandatory injunction for possession of a house situated at Jogi Gate, Jammu. She withdrew it subsequently as transpires from trial courtâ„¢s order dated 8.3.1972. She thereafter filed second suit (No: 83/Civil) in 1982, again seeking mandatory injunction. Defendants resisted the suit and raised a preliminary objection that it was barred by Principles of Res -judicata. Trial court framed an issue on this and eventually decided it on 2.8.1983. While doing so, it decided to apply the bar of Res -judicata, but held the suit barred under Order XXIII Rule 1 (3) and dismissed the same. In appeal the first appellate court went a step further and dismissed the suit by operating bar on both counts. Hence, this appeal which is directed against the judgment of the court below.

(3.) TAKING up the trial court judgment first, it is a common ground that no issue had been struck on whether or not the suit was barred under Order XXIII, Rule 1 (3). The only issues framed related to bar of Res -judicata. How and why did trial court jump on to a different aspect, taking at least plaintiff unaware, is not understandable. Its justification that matter was raised during hearing is preposterous. Many matters and issues some relevant and some irrelevant and frivolous, are generally raised at hearing but causes are not adjudicated upon and decided by clutching at such issues in disregard to norms of prescribed procedure and justice.