Case Note & Summary
The case involves a second appeal arising from a suit filed by the Appellants (original plaintiffs) seeking a declaration that the judgment and decree passed in Regular Civil Appeal No.87 of 1985 was bad in law and a nullity, along with consequential reliefs of mandatory injunction to dismantle a building erected by the Respondents on the suit property and removal of a stone wall. The Appellants had earlier filed R.C.S.No.174 of 1971 for perpetual injunction against the Respondents regarding construction on the property. The present suit was filed after the decision in Regular Civil Appeal No.87 of 1985. The Second Appeal was admitted on the substantial question of law whether the suit was barred by res judicata. The High Court, after hearing counsel, held that the suit was indeed barred by res judicata under Section 11 of the Code of Civil Procedure, 1908, as the issue of title was directly and substantially in issue in the earlier proceedings and had been decided against the Appellants. Consequently, the Second Appeal was dismissed.
Headnote
A) Civil Procedure - Res Judicata - Section 11 Code of Civil Procedure, 1908 - Bar to Subsequent Suit - The suit seeking declaration that earlier judgment and decree in Regular Civil Appeal No.87 of 1985 was bad in law and nullity, and for consequential relief of mandatory injunction, was held barred by res judicata as the issue of title was directly and substantially in issue in the earlier proceedings and the same was decided against the Appellants. (Paras 1-3)
Issue of Consideration
Whether the suit filed by the Appellants is barred by res judicata in view of the earlier judgment and decree in Regular Civil Appeal No.87 of 1985?
Final Decision
Second Appeal dismissed. The suit is barred by res judicata.
Law Points
- Res judicata
- Section 11 CPC
- Bar to subsequent suit
- Issue of title directly and substantially in issue
- Consequential relief
Case Details
2005 LawText (BOM) (02) 317
Second Appeal No.95 of 1987
Mr R.R. Bhonsale for the Appellants, Mr P.K. Dhakephalkar for Respondent No.2
Vishnu Bhikaji Kakade & another
Dhondabai Dinkar Kakade & Ors.
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Nature of Litigation
Second Appeal against dismissal of suit seeking declaration that earlier judgment and decree was nullity and for mandatory injunction.
Remedy Sought
Appellants sought declaration that judgment and decree in Regular Civil Appeal No.87 of 1985 was bad in law and nullity, and consequential mandatory injunction to dismantle building and remove stone wall.
Filing Reason
Appellants claimed that Respondents started construction on property in 1971, leading to earlier suit R.C.S.No.174 of 1971 for perpetual injunction. After decision in Regular Civil Appeal No.87 of 1985, Appellants filed present suit challenging that decree.
Previous Decisions
Regular Civil Appeal No.87 of 1985 decided against Appellants; R.C.S.No.174 of 1971 was earlier suit for perpetual injunction.
Issues
Whether the suit is barred by res judicata in view of the earlier judgment and decree in Regular Civil Appeal No.87 of 1985?
Submissions/Arguments
Appellants argued that the earlier decree was bad in law and nullity.
Respondents contended that the suit was barred by res judicata.
Ratio Decidendi
The suit is barred by res judicata under Section 11 CPC as the issue of title was directly and substantially in issue in the earlier proceedings and was decided against the Appellants.
Judgment Excerpts
On 23rd February 1987 the Second Appeal was admitted by passing the following order : 'Admit. Notice on the question whether this suit is barred by res judicata ?'
I have heard the Counsel appearing for the parties on the substantial question of law indicated in the said order.
Procedural History
Appellants filed R.C.S.No.174 of 1971 for perpetual injunction. That suit led to Regular Civil Appeal No.87 of 1985. After that appeal, Appellants filed the present suit for declaration and mandatory injunction. The suit was dismissed, leading to this Second Appeal No.95 of 1987, admitted on the question of res judicata.
Acts & Sections
- Code of Civil Procedure, 1908: Section 11
