Dismissed

M/s. Nalgonda Diocese Society v. Smt. Vallambatla Ramadevi

Telangana HC10 Apr 2023CRP/220/2023

Case brief

AI extract

What is this about?

The High Court, hearing a revision petition, dismissed the challenge against the trial court's order returning an injunction suit. The Court held that the second suit was barred by res judicata as it involved the same parties and subject matter of a previously decreed suit, and the plea of fraud against the earlier decree needed to be raised in the pending appeal.

What did the court decide?

Revised of the order dated 22.12.2022 of the Court Below returning the plaint in O.S. (SR) No.1600 of 2022.

M/s. Nalgonda Diocese Society Vs Smt. Vallambatla… — Property and Title | Telangana HC (2023)

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IN THE HIGH COURTfOR THE ST{TE OF TELAI.IGANA AT HYDERABAO

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MOO{DAY .THE TENIH DAY OF APRIL TWO TI{OUSAND AND TWENTY THREE

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PRESENT

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TH€ HOt{OT'RABIf SRI JUSTICE K.LAKSHMAN

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Cll/tl REVISION PETffiON l{O: 220OF Z)23

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Petition filed under Sec{bn 227 of Constitution of lndia, against the Order datd 22.12.22 in O.S.Sr,t&c. 1ffi of 2f22 on the til-. of the Courtof Principal Junlor Civil Judge at Nalgonda Dis{ric{.

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Between:

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tvUs. Nalgonda Diocese Soc:iety, (Regd. No. 683/1977), R.P.Road, (OVK Road), Nalgonda, rep. by its Secretary, Sri Father Arcpyawa, Sto. tate Joji, aged about 53 years, Occ. Secretary of Nalgonda, Diocese Rlo. Bisfnp s Flouse, DVK Road. Nalgonda Town, Nalgonda District -508001.

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The Rogationist Educational and Charitable Trust, (Regd. No. 167/20O5) of the Conglpga@n of the Rogationist FattE.s of Fleart of Jesus, Rogate Ashcam. West Deson, Chengamanand(V), Aluva Taluk, Emakulam Dt. Kerala State683103. Rep. by Sr. Saji Vargrfiese, S/o. Varghese, aged 44 years, Occ. Catholic Priest, R/o. Rogae Ashram, Branch Office, Gandhamvari Gudem, Nalgonda Town and District.

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...PETINONERS/PI.AINTIFFS

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AND

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I . Smt. VallambalLa Ramadevi, W/o. V- Pumactrander Rao, Aged about 46 1ears,^{Occ.l-ftcusewifeR/o. 1-113,Laxmi Devi Kaluva, MothkurMandal,} Nabonda Distrid.

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Sri V.Purrucfrander Rao, S/o. Not known to the petitioners . Aged about 51 years, Occ. Business. F{lo. 1-113, Laxmi Devi Kaluva, Mothkur Mandal, Natgonda Disfiia.

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...RESPONDENTS/DEFENOANTS

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lA NO: I OF 2023

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Petition under Order 39 Rde 1 & 2 rlw Sec{ion 151 of CPC praying that in the circumstanoes stated in the aftidavit fded in support of the petition, the High Court .nay be pleased to restrain the respordents in ioterferrirg in the peaceful possessbn and enjoyrnent of tte petitioners prope(y to an extenl of Ac.4{7 Gts in Sy.No. 134, Nalgorda Viltage and Mandal, Nalgorda Oistrict.

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Counsel for the petitioners : Sri C. HANUMANTHA RAO

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Counsel for the Respondents: None appeatd

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The Coqrt made the following: ORDER

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HON'BLE SRIJUSTICE K. LAKSTIMAN

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CIVIL REVISION PETITION No.220 OF 2023

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ORDER:

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Heard Mr. C. Hanumantha Rao, learned counsel for the petltioners.

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This revision is filed challenging the order datd 22.12.2022 in O.S. (SR) No.1600 of 2022 passed by the leamed principal Junior

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Civil Judge, Nalgonda.

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FACTS:

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i) The petitioners herein have filed a suir vide O.S. (SR) No. 1600 of2O22 against the respondentsseeking perpetual injunction restraining them or their servants etc., frorn interfering with the possession of the petitioners over the suit schedule property i.e., land admeasuring Acs.4-07 guntas in Survey No.l34, situated at Nalgonda Revenue Village, Mandal and District. The leamed principal Junior Civil Judge, Nalgonda (hereinafter referred ro as 'Court below') has

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raised the following objections:

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"1. For filing power of Attomey in the representative capacity should be filed under Rule 12 otCRP.

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An appeal is pending before the Hon'ble High Court and a suir is tried by the Hon'ble I Addl. Dist. & Sessions Judge, Nalgonda

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) !

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KL. J CRP No 2-20 of 20I

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)

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on the same matter. How the suit is maintainable against the same subject matter. Be explain."

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ii) With the aforesaid objections, the matter was posted for hearing 20.12.2022, on which date, leamed counsel for the petitioner made his subrnissions on rhe aloresaid objections. Vide order dated 22.12.2022, tlre Court below returned the ptainr with the foltowing

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order:

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"Heard leamed couusel for the plaintiff. Perused the decisions filed by leamed plaintiff counsel. The decisions relied by leamed plaintiff counsel are shorving that a lraudulent decree need not be looked into by any court at any stage. Flowever, plaintill in his pleadings at para no.5 specifically stated that de[endants herein had filed suit in OS No.95/20 14 with respect to same suit schedule property as of the present suit before I ADdl. District Judge, Nalgonda and they obtained a fraudulent decree.

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Further, plaintiff in his pleadings at para no.6 stated that he had prelerred an appeal against the judgment in OS No.95/2014 before Hon'ble High court in A.S. No.72512019 pending for consideration. Hence, from the pleadings of plaintiff itself ir is clear that a decree and judgment is already existing in favour of-defendant no.l,

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KI. ., CRf No.22O of2OI

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with r€sPect to^{sam€ property and betweensame} parties and wfth^{samernatter in issue' Since'} appeal is^{the corrinuationof suit and since the} matter was^{already decidedin OS'No'95/2014and} as the decree^{in OS.No.95/2014 is not declaredas} fraudulent^{by any cour! the decreeis stitl in force'} Hence, the^{presentsuit is barred under principle of} resjudicata.^{Hence,suit is retumed'"}

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iii) Challenging^{the aforesaid order, the petitioners hereinhave} frled the^{present revision.}

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Respondent^{No.l had fiteda suit vide O'S' No'95 of 2o14} against the^{petitioners herein for declarationof title and perpetuat} injunction in respect^{of the plaint schedule propertyi'e'' agricultural} dry land measuring^{Acs.3-04 guntasin Survey No'134'situatedat} Nalgonda Revenue^{Village, Man&land District'The said suit was} decreedon 30.08.2019.

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Feeling^{aggrieved and dissatisfiedwith the said judgment} and decree, the^{petitionersherein have prefenedan appealvide A'S'} No.725 of 2019^{and the same is pending before this Court' During} pendency of the^{saidappeal, the petitioners herein have Frled the}

)

KI. J

CRp No220 of202i

aforesaid OS (SR) No.l600 of Zl22against the respondents herein for

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perpetual injunction.

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Mr. C. Hanumantha Rao, leamed counsel for the petitioners, would submit that the suit schedule property in O.S. No.95 of 2014 is different from the suit schedule property in the present suit, O.S. (SR) No. 1600 of 2022. The impugncd order dated 2|.t2.2V22of the Courr below returning the praint is contrary to the observations made ia the judgment dared 30.0g.2019 in O.S. No.95 of 2014. The land of rhe petitioners herein is different from the rand of respondent No. t and the same is admitted fact and is evident from the cofiunon order dated 28.04.2012 in C.M.A. Nos.327 and 391 of 2017 and order dated 25.09.20t8 in C.R.p. No.6705 of 2017.

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i) He rvou{d further submit that the observations of the Court below that the sale deeds stands in the name of the petitioners were not challenged so far by anybody and the Court below cannot observe that the judgment and decree in favour of respondent No.l is with respect to the same property. The Court below without appreciating the contention of the petition ers that the injunction was granted to respondent No. I rn O.S. No.95 of 2014 as per her contention that the

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KI. J CRP No.2 ot202l

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property of ttre^{petitioners herein is separate and Court below ought to} haveentertainedthesuitforperpetrralinjunction|rledbythe petitioners basing on^{the cause of action dated' 15'12'2022'}

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ii) He would^{further submitthat the Court below failed to} appreciate that^{respondentNo. t had clearly admitted that the land of} respondent No.t^{i.e., Acs.3-04 guntas in Survey No'134 is separatc} from the land Acs.4-07^{guntas of the petitioners and that the Court} below ought not^{to have granted the relief in O.S. No.95of 2014 and} ought to have entertained^{the suit when the suit property is different} from the property of^{respondent No.t and the suit for perpetual} injunction is^permissible.

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iii) He would further^{submit thatrespondent No. t has obtained} the aforesaid^{judgmentanddecreein O.S.No.95 of 2014 by playing} fraud and it is a fraudulent^decree-

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iv) He has also^{ptaced reliance on the principle laid downby} the Hon'ble Supreme^{Court in Safyapal Anand v' State of Madhya} Pradeshl.

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/
/

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'. 1zot61^{to scc loo}

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KL, J CRP No.Z2O of202l

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In view of the aforesaid cont,entions, it is relevant to extract

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the suit schedule property in both the suits and the same is as under: _O.S.^No.95 of 2014: Agricultural dry land measuring Ac.3{4 gunras in Survey No.134, situated at Nalgonda Revenue Village, Mandal and District, and bounded by: North : Agriculture land of Nalgonda Diocese Society; South : Land of Dr. Louise peizzoni and Fr.Anthoni in Survey No.l34; East : Agricuitrre land in Survey No.136; and West : Road leading to Duppalapally from Naigonda.

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O.S. (SR) No.l600 of 2022: All rhat part and parcel of land bearing Survey No. l-14, admeasuring an extent of Acs.4_07 guntas, situater[ at Nalgonda Revcnue Village, Mandal and District, and bounded by: North : Land of plaintiff No. I ; South : Houses and Leprosy Ccnter plots; East : [and bearing Sunry No.136 & park; aod West : Road of M. Duppalapelli.

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As discussed above, earlier suit vide O.S. No.95 of 2014 was filed by respondent No.l herein against the petitioners seeking declaration of title and perpetual injunction in respect of the plaint schedule property therein. The said suit was decreed on 30.0g.2019. Feeling aggrieved by the same, the petitioners herein have filed an appeal vide A.S. No.725 of -" 2019^{' - uvr,} befo r^c e uuthi s Cor \ Uourt and the Same iS pendlng. During pendency of the said appeal,the petitioners herein

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KtJ CRP Nor20 0f2023

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have filed the aforesaid suit vide o.s. (sR) No. 1600 of 2022against both the respondents herein seeking for perpetual injunction. Thus, the petitioners and respondent No. I are common in both the suits. Suwey Number and viilage are arso common. In the eadier suit, the extent of land is Acs.3{4 gunrzs, whereas in the present suit, the extent of land is Acs.4-07 guntas. The boundaries are also common. Therefore, the petitioners herein carurot contend that the suit schedure property in the earrier suit is different from the suit schedure property in the present suit.

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considering the said facts onry, the court below retumed the plaint on the ground that judgment and decree are in existence in favour of respondent No. I with respect to the same property between same parties and the matter in issue is also same. Since appeal is continuation of suit and since the matter was already decided in O.S. No'95 0f 2014 and as the decree in o.S. No.g5 0f 20r4is not decrared as fraudulent by any Court, the said decree is still in force. Therefore, the second suit is hit by the principle of ,res judtcata,. Thus, according to this Court, there is no error in ttre said order dated 22.12.2022 passed by the Court below.

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KI. J CRP^No.220of202l

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With regard^{to the contentionof Mr' C' HanumanthaRao'} leamed counsel^{for the petitionerthat respondent No't had obtained} the aforesaid^{decreeby ptayingfraud, the same cannot be considered} by the Court^{belowin the second suit and the appellateCourt in A'S'} No.725 of^{2019 has to considerthe said aspect'Therefore' the said} contention^{of leamedcounsel for the petitioners cannot be accepted'}

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ll. With^{regardto the fir'st contentionthat the suit schedule} property in^{the earliersuit and the suit schedule propertyin the present} suit are^{different and the same are evident from the} findings/observations^{made by this Court vide common orderdated} 28.04.7017^{in C.M.A. Nos'327 and 391 of 2017 and order dated} 25.09.2018 in^{C.R.P. No'6705 of 2017' ln O'S' No'95 of 2014'} respondent No.l^{had filed an InterlocutoryAppticationvide t'A'} No.1029 of^{2014 under Order - XXXIX'Rules - t and 2 of CPC} seeking^{interim injunctionagainst the petitioner herein' whereas the} petitioners^{herein had filed an application vide t'A' No'1647 of 2016} under the very^{sameprovision seekinginteriminjunctionagainst} respondent No.l herein.^{The Court below vide common order} l9.Ot.2Ol7, allowed I.A.No.l029 of 2014 filed by respondent No.l

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KI. J CRP No220 of202l

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herein and dismissed I.A. No.l647^{of 20rc Frbd by the petitiones.} Feeting aggrieved by the same,^{the petitioners herein have preferred} appeals vide C.M.A.Nos.327 and 391 of^{2017 beforethis Court, and} the same were disposed of by way of common order dated 28.04.2017 directing the parties not to interfure with the^possession of each other till disposal of O.S.No.95 of 2014 and the trial Court was directed to dispose of the main suit within six (06) months from the date of receipt of a copy of the said order.

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[t is relevant to note that in thc said suit olso, respondent No.[ herein has filed an application vide I.A.No.S5t of 2017 in O.S.No.95 of 2014 under Order - XXVI, Rule - 9 of CPC seeking appointment of advocate commissioner to measure and demarcate the entire land in Survey No.l34. The Court below vide order dated ll.l0.20l7 dismissed the said petition. Feeling "qgrieved by the said order, respondent No.l herein had filed a revision vide C.R.P. No.6705 of 2Ol7 before this Court, and this Court dismissed the said revision observing that when there is no dispute with regard to identity or boundaries of suit schedule property, there is no necessity to appoint an Advocate Commissioner. However, ftnally, the learned I

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KL. J CR-P No.22O af2O2J

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Additional District Judge at Nalgonda had decreed the said suit o.S. No.95 of 2014 on 30.0g.2019. Therefore, the aforesaid orders were merged in the said judgment and decree. In view of the same, the petitioners cannot rely upon the findings given by this Court in the aforesaid CMAs as well as CRp. Thus, the said contention of the leamed counsel for the petitioners is unsustainable.

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With regard to the contention that suit schedule properties in both the suits are crifferent and the sarne is evident from the order dated 08.08.2017 in W.p. No.26lg9 ud2620l of 2Ol7 and judgment dated 01.02.2022 in W.A. No.660 of 2021 and judgment dated 03.03.2022 in W.A. No.64 of ?,022. But,the proceedings in the said writ petitions and the writ appeals are in relation to the provisions of ROR Act and, therefore, the same cannot be relied upon by the petitioners to contend that the suit schedule properties in both the suits are different. The proceedings in the said writ petitions and writ appeals and the proceedings in the aforesaid two suits are different.

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Mr. C. Hanumantha Rao, leamed counsel for the petrtloners, has referred paragraph No.3 of the judgment dated 20.08.2019 in O.S No.95 of 2014 to contend that suit schedule

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KI. J CRP No.220 of 2O2J

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property in both the suits is different. The same are pleadings ln written statement of defendant No.l therein. He carurot refer pleadings and contend that trre suit schedure property in both the suits is different.

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As discussed above, dre earlier suit for declaration and perpetual injunction was a comprehensive suit and the same was decreed in favour of respondent No. I and against the petitioners herein. Therefore, the petitioners have to wait for the oubome of A.S.No.No.725 of z0r9 and they have to ,"ke all the aforesaid contentions in the sairl A.S. No.725 of 2019. lnsread of doing so, they have filed the present suit contending that the suit schedule property in both the suits are different and the said contention cannot be accepted.

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It is relevanr ro nore that Section _ I I of the C.p.C. deals with'res judicata, and it has eight (0g) explanations and the same are relevant for the purpose of present revision and, therefore, the same is extracted as under:

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*ll. Res judicata._-_No Court shall try any suit or issue in whic-tr the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or

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KI. J CRP No 2:0 of202.l

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between parties^{under whom they or any of them} claim, titigating^{underthe same titte, in a Court} competent to^{try such subsequent suit or the suit in} which such issue^{has been subsequentlyraised'} and has been^{heardand finatlydecided by such} Court.

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Explanation^{t.-The cxpression"former suit"} strall denote^{a suit whictr has beendecidedprior to} the suit in^{question u'lrether or not it rvas instituted} prior thercto.

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Explanation II.-For^{the purposcs ofthis} section. the^{competenceof a Court shall be} determined^{imespec'tiveof any provisions as to a} right of appeat^{from the dccisionof such Court'}

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Explanation III.-'The^{matter above referredto} must in the^{lormer suit have been alleged by one} party and either^{denied or admitted, cxpressly or} impliedlY,^{bY the other.}

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Explanation IV.-Any^{matterwhich mightand} ought to have^{been made groundol defence or} attack in such^{former suitshall be deemedto have} been a matter^{directly andsubstantially in issue in} such suit.

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Explanation V.-Any relief^{claimed in the} plaint, which is not expressly granted by the decree, shall, for thc purposes.of this section, be dcemed to have been refused.

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KI. J CRP t{0.220 of202-l

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Explanation V[.-Where persons litigate bona fide in respect ofa public right or ofa private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

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Explanation VII.-The provisions of this section shall apply to a proceeding for the execution ofa decree and reGrences in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

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Explanation VIII.-An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."

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In Syed Mohd.Salie Labbai (dead) by L.Rs., v. Mohd. Hanifs (dead) by L.Rs., the Hon'ble Supreme Court hetd that

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Kl* J CRP No 220 of m2l

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applying the doctrine of res^judicata, the following^{requirementsare}

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essential:

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i) litigating parties must be^{the same;} ii) the subject-matter of the suit^{also must be identical;} iii) the matter must be finalty^{decided betweenthe parties;} iv) the suit must be^{decidedby a court of competent} jurisdiction.

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t8. As discussed above,^{parties in both the suits are common} except respondent No.2 in^{the second suit who is the husband of} respondent No.l . The^{subjectmatter is also identical and it was} decided finally between^{the parties and first appealis pending' [t is} not the case o[ the petitioners^{that the Court belorv whichhasdecreed} the earlier suit O.S.No.95 of^{2014 is not the competentCourt and, in} fact, it is a competent Civil Court^{and decreed the said suit'} Therefore, in the^{present case, alt the aforesaid four essential} ingredients are there and, therefore,^{the same were consideredby the} Court below in the impugned^{order dated22.12.2022.There is no}

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error in it.

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KI. J CRP f.lo,2m of202l

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19. [n Malturu Mallappa @) thr. LRs v. Kuruvathappa2,

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the Apex Court held as under:

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"14. It is a settled positi<rn of law that an appea.l is a continuation ol the procoedings of tlre original court. Ordinarily, the appella@ jurisdiction lnvolves a rehearing on law as well as on fact and is inraoked by an aggrieved person. The first appea.l is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must recod its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documcntary, led by ttre parties. The judgment of the first appellate court must display conscious application ol mind and recond findings supported by reasons on all issues and contentions [see: Santosh- Hazai v. Purushottam Tiwari (Deceased) By Lrs.3, Madhukar and others v. Sangram and Others4, B. M. Narayana Cowda v. Shanthamma (Dead) By Lrs. and Another5, H. K. N. Swami v. Irshad Basirh @ead) By Lrs.6 and lr,{/s. Sri R4ia Lakstrni Dyeing Works v. Rangaswamy ChettiarT(20O[) 3 SCC 179(2001) 4 scc 756(2011) t5 scc 476(2005) l0 scc 243 (t980) 4 SCC 259."

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lzozo; a scc : r:

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Kl- J CRP No.22O of 2O2J

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Thus, the proceedings in the firsr appeal i.e., A.S. No.725 of 2019 are continuous proceedings in O.S. No.95 of 2014. As discussed above, whether respondent No.l has obtained the aforesaid decree in O.S. No.95 of 20 14 by playing fraud is the matter to be decided by the appellare Court in A.S.No.725 of 2019 and it cannot be considered by the Court below in the second suit. .fhe Coun below has considered the aforesaid aspects in the impugned order dated 22.12.2022 and rerumed the plaint. The Court below was perfrctly right in retuming the plaint on rhe ground that the present suit is hit by doctrine of res judicuta and trhere is no error in it. The petitioners failed to make out any case to interlere with thc said order and the present revision is tiable to be dismissed.

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