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Mst. Chandra Kali Vs. Sitaram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 439 and 440 of 1965
Judge
Reported inAIR1971All236
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantMst. Chandra Kali
RespondentSitaram and ors.
Appellant AdvocateB.B. Singh, Adv.
Respondent AdvocateU.K. Misra, Adv.
DispositionWrit petitions dismissed
Excerpt:
civil - constitution - article 226 of constitution of india - section 11 of code of civil procedure 1908 - judgment of settlement officer - deputy director of consolidation - writ petition against a judgment decided on merits - dismissed confirming judgment - res judicata applies. - .....case, air 1966 sc 1332 it was inter alia, observed by the supreme court:'it is true that the high court dismissed the appeals arising out of suits nos. 77 and 91, either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. even so the fact remains that the result of the dismissal of the two appeals arising from suits nos. 77 and 91 by the high court on these grounds was that the decrees of the additional civil judge who decided the issue as to title on merits stood confirmed by the order of the high court. in such a case even though the order of the high court may itself not be on merits, the result of the high court decision is to confirm the decision on the issue of the title which had been given on the merits by.....
Judgment:
ORDER

H.C.P. Tripathi, J.

1. Writ Petition No. 439 of 1965 and Writ Petition No. 440 of 1965, in which the parties are the same, are directed against the orders of the Settlement Officer, (Consolidation) dated 25-2-64 and that of the Deputy Director of Consolidation dated 7-9-64.

2. Mr. U.K. Misra, learned counsel for the contesting respondent, has raised a preliminary objection to the maintainability of these petitions. It is urged that, as the connected writ petition no. 177 of 1965, between the same parties, challenging the validity of the aforesaid decisions of the Settlement Officer and Deputy Director of Consolidation had already been dismissed by this Court on 28-11-69, the impugned orders have become final and these petitions in which the validity of the same order was challenged are not maintainable. Reliance is placed by the learned counsel on a decision of the Supreme Court in the case of Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332.

3. Sri B.B. Singh, learned counsel for the petitioner, on the other hand, has contended that as the writ petition no. 177 of 1965 has not been dismissed on merits but on a technical ground, inasmuch as the opposite parties nos. 1 to 4 therein had not been served, the aforesaid order of dismissal cannot create a bar in law to the maintainability of these petitions. Learned counsel has invited my attention to a Full Bench decision of this Court in the case of Jai Narain Har Narain v. Bulaki Das, 1968 All LJ 1047 = (AIR 1969 All 504 (FB)).

4. The Full Bench decision, referred to by the learned counsel for the petitioner, is distinguishable on facts.

5. The Full Bench was dealing with a case in which two suits were consolidated and disposed of by one common judgment in which separate decrees were prepared. A first appeal was filed in the High Court against one decree but no appeal was filed against the other decree. When first appeal came up for hearing before the High Court a preliminary objection was taken that as no appeal was filed against the other decree the judgment of the subordinate court had become final and the first appeal stood barred by res judicata. This argument was repelled by the Full Bench on the ground that it is the decision which creates a bar of res judicata and not a decree and as all that could be done to get rid of the judgment of the subordinate court had been done by filing an appeal against the same, that judgment could not be held to have become final. While dealing with the facts of the case it was inter alia, observed by the Full Bench that:

'If the appellants in the instant appeal had also appealed against the decree passed in the other suit, and in that appeal the judgment passed by the trialcourt had been confirmed by this Court, then it could be contended that the instant appeal was barred by res judicata because in that case the decision of the trial court would stand affirmed by this Court and the case would have been similar to Sheodan Singh v. Daryao Kunwar.'

6. In the instant case the parties in the three writ petitions are the same all of which are directed against the same judgment of the Settlement Officer and Deputy Director of Consolidation. There is nothing on the record to suggest that the subject matter of the writ petition No. 177 of 1965 was different than those of writ Nos. 439 and 440 of 1965. It is true that the connected writ no. 177 of 1965 was dismissed because no steps had been taken to serve contesting opposite parties nos. 1 to 4 and the question in issue was not decided on merits. Even then the result of the dismissal of the aforesaid writ is that the impugned judgment of the Settlement Officer and the Deputy Director have become final and no challenge can be raised against them in these two writs. In Sheodan Singh's case, AIR 1966 SC 1332 it was inter alia, observed by the Supreme Court:

'It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91, either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case even though the order of the High Court may itself not be on merits, the result of the High Court decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the 'decree of the trial Court on the merits whatever may be the reason for the dismissal of the appeals ,.................'

7. In the instant case, as the connected writ petition had been dismissed, the result is that the impugned judgments have been confirmed whatever may be the reason.

8. In the result the preliminary objection raised on behalf of the respondents prevails and these writ petitions are dismissed. There will be no order as to casts.


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