Application to this court challenging the rejection of an earlier application for appointment of a survey knowing commissioner under Order XXVI Rule 9 C.P.C. The court held that since similar applications were previously rejected without challenge, the current one is barred by res judicata across stages of the proceeding and dismissed it.
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CMP NO. 39 OF 2021
This CMP has been filed assailing the order dated 7th February, 2020 (Annexure-1) passed by learned Civil Judge (Junior Division), Salipur in C.S. No. 12 of 2018, whereby he rejected an application under Order XXVI Rule 9 C.P.C.
Mr. Singh, learned counsel for the Petitioner submits that in the suit for demarcation and permanent injunction, appointment of a survey knowing commissioner for demarcation of the land is very much essential for just adjudication of the suit. Learned Civil Judge without considering this vital aspect and relying upon the decision in the case of Harihara Jena –v- Sulochana Sahu and others , reported in 2013 (II) CLR 331, rejected the application of the Petitioner under Order XXVI Rule 9 C.P.C.. Hence, this CMP has been filed.
On perusal of the impugned order, it appears that on earlier three occasions, similar applications under Order XXVI Rule 9 C.P.C. have been rejected and the said order has never been challenged. The Petitioner has not made out any special ground to entertain such an application at a belated stage of the argument of the suit. Law is well settled that principle of res judicata applies to the different stage of a
2
proceeding. In that view of the matter, I am not inclined to entertain the CMP, which is accordingly dismissed.
Urgent certified copy of this order be granted as per
rules.
.................................
K.R. Mohapatra, J.
bks
3 issues framed by the court
Whether a current application under Order XXVI Rule 9 C.P.C. seeking appointment of a survey knowing commissioner should be entertained after earlier similar applications were rejected without challen
Whether the principle of res judicata applies to different stages of the same proceeding.
Whether special circumstances exist to justify entertaining a belated application after repeated rejections.
Colour shows how this judgement treated each authority
Harihara Jena –v- Sulochana Sahu and othersRelied on¶4
2013 (II) CLR 331
1 provisions across 1 enactments
Petitioner
Respondents
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
