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Vishwanath v. Sampat & Ors. - WRIT - B No. 33379 of 2004 [2004] RD-AH 595 (19 August 2004)


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-Quashing of suit proceedings




Vishwanath -------- Petitioner


Sampat  & ors. ------- Respondents


Hon'ble Dr. B.S. Chauhan, J.

Hon'ble D.P. Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing of the suit proceedings in Suit No. 1951 of 2002 Sampat & ors Vs. Vishwanath & ors pending before the learned Civil Judge, Junior Divisiion Haveli, Azamgarh.

The Facts and circumstances giving rise to this case as alleged in this petition are that between the parties there had been a dispute in respect of the suit premises in the consolidation proceedings wherein the rights of the parties stood settled by the consolidation authorities. Being aggrieved, contesting respondents filed Writ Petition No. 29401/1999 Sampat & Ors. Vs. Deputy Director of Consolidation & Ors, which was dismissed by this Court vide judgment and order dated 30/7/2002. Respondents approached the Hon'ble Supreme Court  by filing Special Leave to Appeal (Civil) No. 17902/2002,against the said judgment and order of this Court, which was also dismissed vide order dated 20/9/2004. The said respondents, who had been petitioners before this Court as well as before the Hon'ble Supreme Court, have filed Suit No. 1951/2002 before the aforesaid Civil Court raising the same controversy. The present petitioner-defendant has filed the written statement also taking the plea that the matter had already been settled by judicial pronouncements and, therefore, the suit was barred in view of the provisions of Sections 9 and 11 of the Code of Civil Procedure (hereinafter called C.P.C.). This petition is being filed for quashing the suit proceedings.

Mr. Ram Niwas Singh, learned counsel for the petitioner   has submitted that filing the suit in respect of the same subject matter which had been adjudicated upon between the same parties is not permissible and barred by the provisions of Sections 9 and 11 of the C.P.C. therefore, the suit proceedings are liable to be quashed. Institution of the suit itself is an abuse of the process of the Court being against the public policy which requires finalisation of adjudication of a subject matter between the same parties, therefore the suit proceedings are liable to be quashed.

On the contrary, the learned Standing Counsel has submitted that the suit is pending for more than two years. Written statement has been filed by the present petitioner taking all the objections which the petitioner has raised in this petition, therefore, it is desirable that  either the petitioner should move an application under Order 7 Rule 11 of the C.P.C. or request the Court to frame the issues under Order 14 Rule 1 of the C.P.C. and decide the issue of application of res judicata also as to whether the suit is barred by doctrine of res judicata as a preliminary issue under Order XIV Rule 2 of the C.P.C.  As the petitioner approached the Court at a belated stage, when the suit itself has taken progress, it is not desirable for this Court to quash the suit proceedings. Petition is liable to be dismissed.

We have considered the rival submission made by the learned counsel for the petitioner and the learned Standing Counsel and perused the record.      

The issue involved herein is no more res integra. In Prem Shanker Tripathi Vs. 1st Addl. District Judge & ors, 1986 All.C.J. 251, this Court held that there should be a clear cut case of abuse of the process of the court and public policy, and in case the suit is found to be not maintainable, the Court may quash the suit proceedings. The suit should be frivolous and vexatious act. While deciding the said case this Court placed reliance upon the judgment in Rev. Oswald Joseph Reichel Vs. Rev John Richard Magrath (1889) 14 AC 665, wherein it has been observed as under:-

"......it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigants were to be permitted by changing the form of the proceedings to set up the same case again ......."  

A similar view has been reiterated by the Division Bench of this Court in Gulab Chandra Vs. Munsiff West, Allahabad & ors 1998 All.C.J. 259.

The Hon'ble Supreme Court in Thirumala Tirupati Devasthanams & anr. Vs. Thallappaka Ananthacharyulu & ors., AIR 2003 SC 3209 considered the issue at length and also had taken into consideration its earlier judgments, particularly, in G. Veerappa Pillai Vs. Raman & Raman Ltd., AIR 1952 SC 192; T.C. Basappa Vs. T. Nagappa, AIR 1954 SC 440; Hari Vishnu Kamath Vs. Syed Ahmad Ishaque, AIR 1955 SC 233; Nanduri Yogananda Lakshminarasimhachari Vs. Sri Agastheswaraswamvaru, AIR 1960 SC 622;  Ujjam Bai Vs. State of U.P., AIR 1962 SC 1621; Gulabchand Chhotalal Parikh Vs. State of Gujarat, AIR 1965 SC 1153; and Naresh Shridhar Mirajkar Vs. State of Maharashtra, AIR 1967 SC 1, and summarised the law as under:-

"On the basis of the Authorities it is clear that the Supreme Court and the  High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of the rules of natural justice, (C) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act  in contravention of fundamental rights. The principles,  which govern the exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a cloak of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate court. It was not even argued that there was total lack of jurisdiction in the Civil Court. It could not be denied that the Civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The Civil Court had jurisdiction to decide whether the suit was barred or on the principles of res judicata/ estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the court of competent jurisdiction from deciding these questions. In other words, the High Court should not usurp the jurisdiction of the Civil Court to decide these questions."

The Hon'ble Apex court has also reiterated the similar view in M/s East India Commercial Co. Ltd. Calcutta & anr. Vs. Collector of Customs, Calcutta, AIR 1962 SC 1893. While considering the similar issue a Division Bench of this Court while deciding the Writ Petition No. 29341 of 2004 In Rahmatullah & ors. Vs. Civil Judge (Senior Division), Mathura & ors decided on 30/7/2004 considered the issue at length and held as under:-

"Quashing of proceedings in a suit and issuing the writ of prohibition to the Civil Court not to proceed with a case, is to be  rarely attempted to by any Court of law. Such a course can be adhered to in rarest of rare cases. It is only where the pleadings are per se improbable and wholly obtuse and malicious from their very nature, they are guided by an inbuilt desire to cause serious harm and harassment to the defendant, leave apart unscrupulous wastage of time of the Court. Abuse of process of the Court is, therefore, inherent in such plaints of the suits."

In view of the above, the law can be summarised that in rarest of rarest case where the pendency of the proceedings amount of abuse of the process of the court, the same may be quashed.

Be that, as it may, in the instant case the suit is pending since long and the petitioner has already filed the written statement long back and no interim relief has been granted in favour of the respondent-plaintiffs, it is not desirable to exercise the discretionary  jurisdiction at this stage.  

Petition is dismissed. It is open to the petitioner to move an application under Order VII Rule 11 C.P.C. or get the issues framed under Order XIV Rules 1 C.P.C., if not already framed and request the learned Civil Court to decide the issue of maintainability under Order XIV Rule 2 C.P.C. If such an application is filed, the learned Court is requested to decide the same in accordance with law expeditiously giving strict adherence to the provisions of O. XVII R 1 C.P.C.  




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