Thus, the principle of res judicata cannot be attracted to
the case which was not decided on merits earlier. Approach of
the competent Court must be to decide the case on merits than
considering sheer technicality that the previous eviction case
was dismissed long back on account of default of appearance
by the landlord/Trust. To my mind, eviction of the defaulting
tenant or his representative who refuses to vacate do furnish
continuing periodical cause of action for the landlord to evict
the tenant refusing to vacate the tenement i.e. subject matter
of tenancy.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.545 OF 2014
Ashok Bhaurao Sardar V The State of Maharashtra,
Dated : 17.7.2014.
CORAM : A.P.BHANGALE, J.
Citation;2014(5) ALLMR 808
1. Rule returnable forthwith. Heard submissions at
the bar.
2. The Petitioner was facing the eviction proceedings
initiated at the instance of respondent no.4/Trust to evict the
petitioner from the agricultural land bearing Survey No.52/2,
Gat No.10, admeasuring 3 Hectares, 76 R situated at Mouza
Sukali, Tq. Daryapur, District Amravati the
land owned by the
Trust. The proceedings were dismissed on 15.7.2002. As the
Trust did not apply for restoration, the dismissal order had
attained finality. The Trust filed fresh eviction proceedings
being Tenancy Case No.59/27/Sukali/3/20092010
under
Section 120C of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958 (hereinafter referred to as
“the BTAL Act”) on the same grounds as in earlier eviction
case. Respondent no.2, despite this objection, decided the case
on merits and allowed the case for summary eviction. The
petitioner had challenged the order in Revision
No.Ten/B/78/2012. The revision was dismissed by the
Maharshtra Revenue Tribunal by judgment, dated 8.1.2014.
3. The question posed is as to whether the suit dismissed
on the ground of default in appearance of the plaintiff bars a
fresh suit on the same cause of action in view of the Order IX,
Rule 8 of the Code of Civil Procedure. The question was under
consideration of learned Single Judge of this Court in the
ruling Premachand Lakhanji Jain vs. Smt. Lilabai Krishnath
Surve, 1998 (3) Mah LJ 252. In that Civil Revision
application, suit was dismissed for default in terms of the
Order IX, Rule 8 of Civil Procedure Code and it was held that
respondent no.1 was not entitled to file fresh suit on the same
cause of action, it being for the same relief, taking shelter of
Order IX, Rule 4 of the Code of Civil Procedure.
4. In Ramesh Sitaram vs. Pandurang 2012, (6) Mh.L.J.
360, the Single Judge of this Court held that fresh suit was
barred once it is found that previous suit was dismissed.
5. In the case of Collector of Bilaspur vs. Ajit P.K. Jogi,
(2011) 10 SCC 357, it was held that dismissal of the Writ
Petition without hearing on merits does not amount to resjudicata
in subsequent proceedings. To attract the principle of
res judicata, the previous decision must have been on merits
and not for the default of the party. Reference is also made to
the ruling reported in AIR 2008 Patna 5, Mrs. Niloufer
Siddiqui and another vs. Indian Oil Corporation Ltd. and
Others ( para 11) to argue that previous decision in the suit
on title must be on merits to attract principle of res judicata.
6. Thus, the principle of res judicata cannot be attracted to
the case which was not decided on merits earlier. Approach of
the competent Court must be to decide the case on merits than
considering sheer technicality that the previous eviction case
was dismissed long back on account of default of appearance
by the landlord/Trust. To my mind, eviction of the defaulting
tenant or his representative who refuses to vacate do furnish
continuing periodical cause of action for the landlord to evict
the tenant refusing to vacate the tenement i.e. subject matter
of tenancy.
7. Order IX of the Code of Civil Procedure deals with
appearance of parties and consequences of disappearance. The
objective of procedural provision is that parties are expected to
attend the Court punctually on the date fixed for their
appearance/attendance, at least through their pleaders when
appointed, if not in person. Provisions are intended to ensure
that the party who filed the suit take diligent steps to pursue
progress of the suit instituted. Rule 3 indicates that if none of
the party appears, the Court is empowered to dismiss the suit.
Rule 4 permits the plaintiff whose suit is dismissed at
preliminary stage on account of failure to serve summons or
when defendant, who is served alone, appears and suit is
dismissed to get the suit restored upon showing sufficient
cause for the absence. In such case, Rule 4 permits the fresh
suit subject to the law of limitation or selfcontained
remedy
of restoration of the suit when sufficient cause is made out to
restore the suit. Rule 8 contemplates the procedure that when
the defendant appears but not the plaintiff and the defendant
has not admitted the suit claim, the suit would be dismissed. If
the defendant admits the suit claim partly or wholly, in that
event, decree would follow accordingly. Rule 9 bars fresh suit
in respect of the same cause of action because the remedy is
selfcontained
in the Order IX, Rule 8 of the Code of Civil
Procedure to enable the plaintiff to apply for setting aside
dismissal of the suit and/or restoration of the suit. The cause of
action for eviction of the tenant when based on valid
continuing cause of action i.e. the case which was not decided
on merits earlier is distinguishable from the bar applicable for
the fresh suit brought on the same cause of action. This being
so, I do not find any serious infirmity in the order passed by
the Maharashtra Revenue Tribunal dismissing the revision
preferred against the eviction order on merits by the SubDivisional
Officer, District Amravati. More so when the larger
interest of justice demand that eviction order made final on
merits in accordance with law in favour of the landlord ought
not be allowed to be defeated by taking shelter of procedural
rule of technicality. It has to be borne in mind that the
procedure is handmaid of justice rather than a mistress. Rules
of procedure are means for the trial Court to regulate the
trial proceedings before it. The impugned Judgment and
Order on merits has attained finality and appears sustainable
on all fours. I do not find serious infirmity in the impugned
Judgment and Order to justify interference in exercise of extra
ordinary Writ jurisdiction.
8. The Writ Petition is, therefore, found without merits.
Hence, it is dismissed. Rule is discharged accordingly.
JUDGE
9. Mr.R.D.Bhuibhar, learned Counsel for the petitioner
prays of continuance of ad interim relief, which was granted by
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Bombay High Court
10 wp545.14.odt
this Court vide order dt.30.1.2014, for a further period of four
weeks. Learned Counsel for the respondents oppose the prayer
so made. However, in the interest of justice, the ad interim
order dt.30.1.2014 passed by this Court shall continue to
operate for a further period of four weeks and the same shall
stand vacated thereafter automatically.
JUDGE
jaiswal
.
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Print Page
the case which was not decided on merits earlier. Approach of
the competent Court must be to decide the case on merits than
considering sheer technicality that the previous eviction case
was dismissed long back on account of default of appearance
by the landlord/Trust. To my mind, eviction of the defaulting
tenant or his representative who refuses to vacate do furnish
continuing periodical cause of action for the landlord to evict
the tenant refusing to vacate the tenement i.e. subject matter
of tenancy.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.545 OF 2014
Ashok Bhaurao Sardar V The State of Maharashtra,
Dated : 17.7.2014.
CORAM : A.P.BHANGALE, J.
Citation;2014(5) ALLMR 808
1. Rule returnable forthwith. Heard submissions at
the bar.
2. The Petitioner was facing the eviction proceedings
initiated at the instance of respondent no.4/Trust to evict the
petitioner from the agricultural land bearing Survey No.52/2,
Gat No.10, admeasuring 3 Hectares, 76 R situated at Mouza
Sukali, Tq. Daryapur, District Amravati the
land owned by the
Trust. The proceedings were dismissed on 15.7.2002. As the
Trust did not apply for restoration, the dismissal order had
attained finality. The Trust filed fresh eviction proceedings
being Tenancy Case No.59/27/Sukali/3/20092010
under
Section 120C of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958 (hereinafter referred to as
“the BTAL Act”) on the same grounds as in earlier eviction
case. Respondent no.2, despite this objection, decided the case
on merits and allowed the case for summary eviction. The
petitioner had challenged the order in Revision
No.Ten/B/78/2012. The revision was dismissed by the
Maharshtra Revenue Tribunal by judgment, dated 8.1.2014.
3. The question posed is as to whether the suit dismissed
on the ground of default in appearance of the plaintiff bars a
fresh suit on the same cause of action in view of the Order IX,
Rule 8 of the Code of Civil Procedure. The question was under
consideration of learned Single Judge of this Court in the
ruling Premachand Lakhanji Jain vs. Smt. Lilabai Krishnath
Surve, 1998 (3) Mah LJ 252. In that Civil Revision
application, suit was dismissed for default in terms of the
Order IX, Rule 8 of Civil Procedure Code and it was held that
respondent no.1 was not entitled to file fresh suit on the same
cause of action, it being for the same relief, taking shelter of
Order IX, Rule 4 of the Code of Civil Procedure.
4. In Ramesh Sitaram vs. Pandurang 2012, (6) Mh.L.J.
360, the Single Judge of this Court held that fresh suit was
barred once it is found that previous suit was dismissed.
5. In the case of Collector of Bilaspur vs. Ajit P.K. Jogi,
(2011) 10 SCC 357, it was held that dismissal of the Writ
Petition without hearing on merits does not amount to resjudicata
in subsequent proceedings. To attract the principle of
res judicata, the previous decision must have been on merits
and not for the default of the party. Reference is also made to
the ruling reported in AIR 2008 Patna 5, Mrs. Niloufer
Siddiqui and another vs. Indian Oil Corporation Ltd. and
Others ( para 11) to argue that previous decision in the suit
on title must be on merits to attract principle of res judicata.
6. Thus, the principle of res judicata cannot be attracted to
the case which was not decided on merits earlier. Approach of
the competent Court must be to decide the case on merits than
considering sheer technicality that the previous eviction case
was dismissed long back on account of default of appearance
by the landlord/Trust. To my mind, eviction of the defaulting
tenant or his representative who refuses to vacate do furnish
continuing periodical cause of action for the landlord to evict
the tenant refusing to vacate the tenement i.e. subject matter
of tenancy.
7. Order IX of the Code of Civil Procedure deals with
appearance of parties and consequences of disappearance. The
objective of procedural provision is that parties are expected to
attend the Court punctually on the date fixed for their
appearance/attendance, at least through their pleaders when
appointed, if not in person. Provisions are intended to ensure
that the party who filed the suit take diligent steps to pursue
progress of the suit instituted. Rule 3 indicates that if none of
the party appears, the Court is empowered to dismiss the suit.
Rule 4 permits the plaintiff whose suit is dismissed at
preliminary stage on account of failure to serve summons or
when defendant, who is served alone, appears and suit is
dismissed to get the suit restored upon showing sufficient
cause for the absence. In such case, Rule 4 permits the fresh
suit subject to the law of limitation or selfcontained
remedy
of restoration of the suit when sufficient cause is made out to
restore the suit. Rule 8 contemplates the procedure that when
the defendant appears but not the plaintiff and the defendant
has not admitted the suit claim, the suit would be dismissed. If
the defendant admits the suit claim partly or wholly, in that
event, decree would follow accordingly. Rule 9 bars fresh suit
in respect of the same cause of action because the remedy is
selfcontained
in the Order IX, Rule 8 of the Code of Civil
Procedure to enable the plaintiff to apply for setting aside
dismissal of the suit and/or restoration of the suit. The cause of
action for eviction of the tenant when based on valid
continuing cause of action i.e. the case which was not decided
on merits earlier is distinguishable from the bar applicable for
the fresh suit brought on the same cause of action. This being
so, I do not find any serious infirmity in the order passed by
the Maharashtra Revenue Tribunal dismissing the revision
preferred against the eviction order on merits by the SubDivisional
Officer, District Amravati. More so when the larger
interest of justice demand that eviction order made final on
merits in accordance with law in favour of the landlord ought
not be allowed to be defeated by taking shelter of procedural
rule of technicality. It has to be borne in mind that the
procedure is handmaid of justice rather than a mistress. Rules
of procedure are means for the trial Court to regulate the
trial proceedings before it. The impugned Judgment and
Order on merits has attained finality and appears sustainable
on all fours. I do not find serious infirmity in the impugned
Judgment and Order to justify interference in exercise of extra
ordinary Writ jurisdiction.
8. The Writ Petition is, therefore, found without merits.
Hence, it is dismissed. Rule is discharged accordingly.
JUDGE
9. Mr.R.D.Bhuibhar, learned Counsel for the petitioner
prays of continuance of ad interim relief, which was granted by
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Bombay High Court
10 wp545.14.odt
this Court vide order dt.30.1.2014, for a further period of four
weeks. Learned Counsel for the respondents oppose the prayer
so made. However, in the interest of justice, the ad interim
order dt.30.1.2014 passed by this Court shall continue to
operate for a further period of four weeks and the same shall
stand vacated thereafter automatically.
JUDGE
jaiswal
.
::: Downloaded on - 18/10/2014 09:16:59 :::
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