SHRIRAM NARAYAN DHOND Vs. DEMU SURYA GAUDE

JUDGEMENT

(1.) THE respondent filed a suit against the petitioners in the Court of the Civil Judge, S. D. , Ponda, being Regular Civil Suit No. 32 of 88, for a permanent injunction to restrain them from interfering with his lawful possession in respect of the suit property situated at Betqui, Ponda, and bearing Survey No. 91/4. Along with the suit an application for temporary injunction was also made before the learned Trial Judge. That application was granted by the learned trial Judge who found the respondent to be in possession of the suit land. The petitioners then moved the learned District Judge who in appeal rejected their claim for possession and by the impugned judgment dated 5-7-89 upheld the finding of the learned Trial Judge. Hence the present Civil Revision Application.

(2.) SHRI S. K. Kakodkar, learned Counsel for the petitioners, has submitted that the exercise undertaken by the respondent in filing Suit No. 32 of 88 was not possible under the law. The learned Counsel brought to my notice that the same respondent somewhere in the year 1986 had already filed a suit against the petitioners, being Regular Civil No. 35 of 86, also for permanent injunction with regard to the same property in which an application for temporary injunction brought by him was rejected by the learned Trial Judge vide order dated 6-6-86. In this order the learned Trial Judge expressly held that the respondent has not been able to show that he was in possession of the suit property and that no prima facie case has been made out by him to obtain the interim relief sought for. The learned Judge has also clearly mentioned in the aforesaid order that "from the survey record and from the licence and from the affidavits filed by the defendants, the defendants have proved that the plaintiff is not in possession of the suit property". This finding was not challenged by the respondent since no appeal was filed by him against the dismissal of his application for temporary injunction. The learned Counsel urged that since the Trial Court had refused to grant an injunction in the respondents favour in the earlier suit of 1986 the Trial Court had obviously no jurisdiction to grant it now in 1988 with regard to the same property and in respect whereof the same Court has held that the respondent had not been able to show that he was in its possession.

(3.) THERE is considerable substance in the submission of Shri Kakodkar. Admittedly the earlier Suit Numbered 35 of 86 being still pending and in which the respondent was found out of possession in respect of the suit property it was not permissible for the respondent to file a fresh suit on the same subject matter during the pendency of the earlier suit. Further if the respondent hd not been able to establish his possession over the suit property in the earlier first suit and on this ground the learned Civil Judge had declined to grant him any interim relief it was not open for the respondent, who did not even challenge the order dated 6-6-1986 rejecting his prayer for injunction, to file in the same Court another suit on the same property and move the Trial Judge with a fresh application for a similar relief which was denied to him in the earlier suit. And if such suit was not available no temporary injunction could have been entertained by the learned Trial Judge on the same matter. The learned District Judge clearly overlooked this simple aspect of the matter involving a jurisdictional error committed by the learned trial Judge when he refused to interfere in appeal with this wrong exercise of jurisdiction assumed by the trial Court with material irregularity.