Toranlal and ors. Vs. Smt. Kunwarbai - Court Judgment

Excerpt:
- - therefore, in the opinion of this court, since the plaintiff/respondent is a poor lady, it would be wholly unjust to remand this case to the lower court at this stage for deciding the other issues.d.r. deshmukh, j.1. this second appeal is by the defendants against the judgment and decree dated 16th august, 1990 by shri p.n.s. chauhan, district judge, durg in civil appeal no. 10-a/89 whereby the first appellate court has reversed the judgment and decree dated 23-1- 89 of the 5th civil judge class-ii, durg in civil suit no. 47-a/1986.2. the controversy lies within a narrow compass. defendant no. 1/ appellant toranlal is the ex-malguzar of village janjgiri, tehsil and district durg. there was some dispute between the defendant no. i/appellant and the plaintiff/respondent smt. kunwar bai relating to some agricultural land in which the plaintiff/respondent was preventing the flow of water causing damages to the crops of the defendant no. i/appellant. this civil suit no. 19-b/77 was dismissed against the defendant no. i/appellant. aggrieved by the dismissal of his civil suit no. 19-b/77, tomarlal had demolished the wall of the house of the plaintiff and had dug a deep pit on her land. the plaintiff/respondent brought a civil suit no. 47-a/1986 against toranlal and 4 others for grant of permanent injunction to restrain the defendant/appellant from interfering with her possession. the defendant/appellant denying the allegations of the plaintiff resistance the suit inter alia on the ground that the judgment and decree in civil suit no. 19-b/77 had effect of res judicata upon the subsequent suit which was not maintainable.3. the learned lower court framed issues on the question of res judicata and maintainability of the suit and also regarding entitlement of the plaintiff to permanent injunction. the plaintiff and defendants led evidence before the lower court, i.e., relating to the cause of action upon which permanent injunction against the defendant/appellant was sought. however the learned lower court dismissed the suit upon the issue of res judicata alone holding that the judgment and decree in the earlier suit had the effect of res judicata on the subsequent suit. the lower court did not give any finding on other issues.4. in appeal, the first appellate court held that the cause of action in civil suit no. 19-b/77 arising in the subsequent suit was not directly and substantially in issue in the previously instituted suit between the same parties. it therefore negatived the finding of the lower court on the question of res judicata and upon appraisal of the evidence led by the parties held that the plaintiff was entitled to a decree of a permanent injunction and damages of rs. 200/- against the defendants. against this judgment, the defendants have preferred this second appeal.5. this appeal has been admitted on the following substantial question of law:-'whether in the facts and circumstances of the case, after finding that the decision in the earlier suit did not operate as res judicata, the first appellate court instead of proceeding to decree the claim of the plaintiff-respondent should have remanded the case to the trial court for its further trial and disposal ?' 6. having perused the record of the civil suit no. 10- a/89 and also the finding recorded by the first appellate court, there is absolutely no doubt that the earlier suit, though between the same parties, was on an absolutely different cause of action which was relating to stopping the flow of water by the plaintiff/respondent in the field of defendant no. i/appellant and causing damage to the crops whereas the subsequent suit was for permanent injunction and damages due to the demolition of the wall of the house of the plaintiff and digging of a pit on her land. thus, the cause of action in the subsequent suit was not at all directly and substantially in issue in the previously instituted suit though between the same parties, therefore, the judgment and decree delivered in the earlier suit could not have the effect of res judicata in the subsequent suit. thus, the finding recorded by the first appellate court on this issue is wholly in accordance with law and is upheld.7. it was contended by the learned counsel for the appellants that the first appellate court, once it recorded the finding that the judgment in the earlier suit did not operate as resjudicata in the subsequent suit it ought to have remanded the matter to the lower court under order 41 rule 23 and had no jurisdiction to decide other issues upon which no finding was recorded by the lower court. it was contended that the appeal should therefore be allowed on this ground alone and the matter should be remanded to the lower court for recording finding on other issues. on the other hand, counsel for the plaintiff/respondent has argued that in view of the fact that since the parties had led evidence on the issues, the first appellate court was justified in recording a finding on other issues and allowing the appeal.8. under order 41 rule 23, the first appellate court has been given the discretion to remand the case where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal and may further direct what issue or issues shall be tried in the case so remanded. thus, in this case, the proper course for the first appellate court was that it should have remanded the case to the lower court for recording a finding on the other issues. however, civil suit no. 47-a/1986 was instituted in the year 1986. parties had led evidence on all issues. this court also finds that the finding recorded by the first appellate court that the plaintiff/respondent was entitled to a permanent injunction in her favour against the defendant no. i/appellant and also to damages of rs. 200/- is based upon a proper appraisal of the evidence led by the parties and does not call for any interference. moreover, this court is not inclined to pass an order of remand at the stage of second appeal in this case especially because the civil suit was instituted in the year 1986 and as many as 19 years have passed thereafter. counsel for the appellants/defendants has during arguments contended that the appellants neither intend nor have ever interfered with the possession of the plaintiff/respondent over the suit house. therefore, in the opinion of this court, since the plaintiff/respondent is a poor lady, it would be wholly unjust to remand this case to the lower court at this stage for deciding the other issues. since the parties had led full evidence before the lower court on all other issues and the finding recorded by the first appellate court is based on a proper appraisal of the evidence, therefore, the special circumstances do not call for a remand of the case. the judgment and decree passed in first appeal thus calls for no interference.9. the appeal is accordingly dismissed. in the facts and circumstances of the case, parties shall bear their own costs.