ORDER
Rajendra Menon, J.
1. Challenging a order, Annexure P/1 dated 3rd January 2006 passed by the Court of the Third Civil Judge, Class-II, Vidisha in civil suit No. 36-A oP2006 rejecting an application filed by the petitioner for grant of temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as CPC) on the ground that the application is not maintainable as it is hit by the principles of res judicata petitioner has filed this petition.
2. Petitioner herein has filed the suit in question for declaration of title, possession and permanent injunction with regard to a plot measuring 60 feet x 60 feet situated in Luhangi Mohalla, Vidisha. The original suit was filed by Kashi Baj who has since expired and the present petitioner is pursuing the suit as legal heir of the deceased, Kashi Bai. Initially, an application for injunction under Order XXXIX, Rules 1 and 2, CPC was filed in the suit and the respondent No. 1 filed reply to the said application. However, before orders could be passed on this application for temporary injunction, various applications were filed in the suit, and therefore, the case was adjourned from time to time for deciding the applications. Finally vide order dated 5th July 2005 (Annexure P/4), the application for temporary injunction under Order XXXIX, Rules 1 and 2, CPC filed by the petitioner was rejected on the ground that the parties have filed a series of applications, the suit is pending for more than five years, and therefore, it is better to decide the suit on merit after recording of evidence, and therefore, it is not proper to decide the application under Order XXXIX, Rules 1 and 2, CPC and the same was dismissed.
3. When this application was dismissed vide Annexure P/4 dated 5th July 2005 and when the respondent No. 1 started making certain construction in the disputed area, petitioner again moved an application for grant of temporary injunction. This application is now rejected by the impugned order and the only reason indicated by the learned Court for rejecting the application is that the earlier order passed on 5th July 2005 vide Annexure P/4 operates as res judicata, and, therefore, now no injunction can be granted. It has been held by the learned Court that as the application for temporary injunction was earlier rejected on 5th July 2005, no further application for injunction is now maintainable.
4. Shri Bhagwan Pandey, learned Counsel for the petitioner argued that the earlier application for temporary injunction under Order XXXIX, Rules 1 and 2, CPC filed as Annexure P/2 on 11th December 1998 was not decided on merit. It was dismissed only on the ground of delay in the proceedings and not on merit. That being so, he argues that the principles laid down in Section 11, CPC will not apply and the learned Court has committed material irregularity in rejecting the application for injunction on such consideration.
5. Having heard learned Counsel for the petitioner and on perusal of the record, the only question involved in this petition is as to whether the order passed vide Annexure P/1 dated 3rd January 2006 is proper and as to whether the principles of res judicata will apply in the facts and circumstances of the present case.
6. Under Section 11 of CPC, no Court is permitted to try any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties, or between the same parties under whom they or any of them claim, litigating and the same has been heard and finally decided in the earlier suit.
7. As indicated hereinabove, when the earlier application for temporary injunction was filed and when the order, Annexure P/4 dated 5th July 2005 was passed rejecting the same, there was no determination of the dispute involved in the matter on merit.
8. Question of applicability of res judicata to interlocutory orders was considered by the Supreme Court in the case of Arjun Singh v. Mohindra Kumar : [1964]5SCR946 . In the aforesaid case, it has been observed as under by the Supreme Court.
Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not to be prejudiced by the normal delay which the proceedings before the Court usually take. They did not in that sense, decide in any manner the merits of the controversy to issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be Justified in rejecting the same as an abuse of the process of Court.
9. The principle laid down by the Supreme Court in the case of Satyadhan Ghosal v. Smt. Deorajin Debi : [1960]3SCR590 which has been applied by the learned Court below in the present case only contemplates that the principle of res judicata will apply even in different stages of a pending suit. However, a complete reading of the principle laid down in paragraph 8 of the aforesaid judgment clearly indicates that while applying the principle in-between two stages of the same litigation, the question involved has to be decided on merit, In the present case, the application for temporary injunction was not decided on merit. The case of Satendra Ghosal (supra) was considered by the Supreme Court in the case of Arjun Singh (supra) and the same is explained in paragraph 10 of the said Judgment and it is only then that the principle as indicated hereinabove is laid down by the Supreme Court in the case of Arjun Singh (supra).
10. Keeping in view the principles laid down by the Supreme Court in the case of Arjun Singh (supra) as reproduced hereinabove and considering the facts and circumstances of the present case, I am of the considered view that rejection of the application for temporary injunction filed by the petitioner due to subsequent development of raising constructing by the respondent is wholly erroneous and contrary to the principles of law and is unsustainable, The principles of res judicata have been wrongly applied in the present case. The earlier application was not at all considered on merit and it was dismissed only on the ground of delay caused by the parties and as there is no determination of the question of grant of injunction on merit, the principles of res judicata will not apply.
11. Accordingly, keeping in view the legal principles as laid down by the Supreme Court in the case of Arjun Singh (supra), I am of the considered view that this petition has to be allowed as the order impugned is contrary to the principles of law and is unsustainable.
12. Accordingly, this petition is allowed. Order Annexure P/1 dated 3rd January 2006; passed by the learned Court below is quashed. The learned Court is directed to decide the application. Annexure P/5 filed by the petitioner under Order XXXIX, Rules 1 and 2, CPC afresh in accordance with law.
13. Petition stands allowed and disposed of with the aforesaid.