Appeal dismissed against Trial Court's second grant of temporary injunction. Court held new cause of action arising from June construction allowed fresh Order XXXIX application. First order did not cover subsequent construction.
Appeal dismissed; impugned order allowing injunction upheld; stay petition and pending applications dismissed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Misc. Appeal No. 662/2021
----Appellants
Versus
----Respondents
For Appellant(s) : Mr. B.S. Sandhu Mr. S.K. Shrimali For Respondent(s) : Mr. Trilok Joshi
HON'BLE MS. JUSTICE REKHA BORANA Order
12/01/2023
The present appeal has been filed against the order dated 07.07.2021 passed by the Additional District Judge No.1, Hanumangarh whereby the application under Order XXXIX Rules 1 & 2, CPC as preferred by the plaintiffs/respondents has been allowed.
The case of the appellants/defendants is that earlier after filing of the suit for specific performance of contract, the plaintiffs preferred an application under Order XXXIX Rules 1 & 2, CPC with a prayer that the property in question be not alienated and no charge be created on the said property. During the pendency of
(2 of 5) [CMA-662/2021]
the said application, two subsequent applications under Section 151 CPC were preferred for restraining the defendants from raising construction on the disputed land. The first application under Order XXXIX Rules 1 & 2, CPC was finally decided by the Court on 05.04.2021 whereby the defendants were restrained from alienating as well as creating any charge over the property in question. The said order was silent as to raising of the construction by the defendants meaning thereby the learned Court had rejected the prayer of the plaintiffs for restraining the defendants from raising any further construction.
Learned counsel for the appellants submitted that the order dated 05.04.2021 was never appealed against and therefore, the same has become final for all purposes. After two months of the decision on the said application, the second application under Order XXXIX Rules 1 & 2, CPC has been preferred by the plaintiffs on the same ground, on the same cause of action and also for the same relief. Counsel submitted that the same could not have been entertained by the Court below and the relief as granted could not have been granted. In support of his submission counsel relied upon the Hon'ble Apex Court judgment passed in the case of Arjun Singh Vs. Mohindra Kumar & Ors; Civil Appeal No.768/1963 [AIR 1964 SC 993] and the Karnataka High Court judgment passed in the case of K.C. Chandrashekar Raju Vs. D. Venkatesh & Ors: W.P. No. 378/2006 [ILR 2008 Karnataka 1660] .
Per contra, learned counsel for the respondents submitted that earlier when the applications under Section 151 CPC were preferred by the respondents, ad interim orders on the same were passed by the Court and the construction as sought to be raised
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[CMA-662/2021]
by the defendants was restrained. Further when the construction was not stopped by the defendants, the police assistance was provided by orders of the Court and the construction was finally stopped. In pursuance to the said orders, the construction was stopped and therefore when the first application under Order XXXIX Rules 1 & 2, CPC was decided, no grievance regarding the construction remained and therefore, no order was required to be passed by the court restraining defendants for raising any further construction. Counsel submitted that it was only because of the subsequent fact when in the month of June, 2021 the defendants started raising construction, that a fresh cause of action arose to the plaintiffs and therefore, the second application under Order XXXIX Rules 1 & 2, CPC was preferred which cannot be said to be based on the same set of facts. The second application was based on the subsequent facts which definitely was a new cause of action to the plaintiffs and the trial Court rightly exercised its jurisdiction in entertaining and allowing the same.
Heard learned counsel for the parties and perused the material available on record.
A perusal of the second application under Order XXXIX Rules 1 & 2, CPC preferred by the plaintiffs makes it clear that in the said application the averments regarding the earlier applications being moved, further applications under Section 151 CPC being moved and ad interim orders being passed by the Court on the same, have specifically been made. It is not that the said facts had been concealed from the Court and the second application was preferred for the same relief.
A perusal of the impugned order makes it clear that the learned Court had kept into consideration, the earlier order dated
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05.04.2021 as well as the subsequent facts. The Court has reached to a specific finding that the order dated 05.04.2021 could not be read to mean that the Court had admitted the submission of the defendants regarding the change in nature of the land. The Court below reached to the following specific findings: -
"vkns'k esa mDr vkosnu i= dks fuLrkj.k djrs le; vkns'k fn;k x;k Fkk fd izkFkZuk i= dh pj.k la0 2 esa of.kZr d`f"k Hkwfe dks [email protected] fdlh Hkh izdkj ls vU; O;fDr;ksa dks jgu] cS; o eqarfdy ugha djsa] ijarq bldk vFkZ ;g ugha gS fd U;k;ky; us [email protected] ds fdlh dk;Z dks Hkw&ifjorZu ds laca/k esa vizR;{k rkSj ij Lohdkj dj fy;k gksA vr% vf/koDrk [email protected] ds }kjk mBk, x, rdZ fopkj djus ;ksX; ugha ik, tkrs gSaA"
In view of the specific findings of the trial Court it cannot be concluded that the Court below did not consider the filing of the earlier application as well as passing of the earlier order dated 5.04.2021. While passing the order dated 29.06.2021, the Court was very well aware of the earlier order dated 05.04.2021 as well as the contents of the said order. So far as the judgments relied upon by learned counsel for the appellants are concerned, the ratio as laid down by Hon'ble Apex Court in the case of Arjun Singh (supra) rather specifically lays down that the principle of res judicata would not apply to the orders of stay, injunction or receiver which are designed to preserve the status quo pending the litigation. The Hon'ble Apex Court specifically held that such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. In view of the ratio laid down by the Hon'ble Apex Court, the controversy in question is specifically governed by the said ratio wherein a total new cause of action has been pleaded by the
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plaintiffs and the same has been adjudicated by the Court below in terms of law. The judgment of Karnataka High court in the case of K.C. Chandrashekar Raju (supra) is also on the same lines wherein it has been provided that if no change of circumstances is proved, the order passed even at the stage of interlocutory order will operate as res judicata. The same not being the situation here, the ratio would not apply to the present matter.
The present appellants does not deserve interference even on the ground that in the reply to the application under Order XXXIX Rules 1 & 2, CPC they specifically came up with a case that no construction, whatsoever, is being raised by them and the construction, if any, is being raised by their brother who is not a party to the present litigation.
In view of the specific averments of the defendants themselves, the arguments now sought to be raised before this Court that the defendants would suffer hardship because of the non completion of the construction cannot be held to be tenable and cannot be taken into consideration by this Court.
In view of the above observations, this Court finds no ground to interfere in the order impugned and the present appeal is therefore dismissed .
Stay petition and all other pending applications also stands dismissed.
(REKHA BORANA),J
77-Dharmendra/-
2 issues framed by the court
Whether a subsequent application for injunction regarding construction on disputed land is barred by res judicata after an earlier interim order.
Whether the cause of action for the second application was new based on subsequent construction activities in June 2021.
Colour shows how this judgement treated each authority
Arjun Singh Vs. Mohindra Kumar & OrsRelied on¶19
Arjun Singh Vs. Mohindra Kumar & Ors; Civil Appeal No.768/1963 [AIR 1964 SC 993] · Who else cites this
K.C. Chandrashekar Raju Vs. D. Venkatesh & OrsRelied on¶19
K.C. Chandrashekar Raju Vs. D. Venkatesh & Ors: W.P. No. 378/2006 [ILR 2008 Karnataka 1660] · Who else cites this
K.C. Chandrashekar Raju Vs. D. Venkatesh & OrsRelied on¶33
K.C. Chandrashekar Raju (supra)
2 provisions across 1 enactments
Rajesh Kumar
Sarla
Rakesh Kumar
Raghuveer Singh
Indu Bala
Aruna
Rekha Borana
As recorded by the court registry
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