SWASTIK COMPLEX PVT LTD Vs. PRAFULLA JAGESHWAR MUKADDAM

JUDGEMENT

(1.) Defendant No.1 in Regular Civil Suit No. 1634 of 2000 has filed this Revision challenging rejection of his application below Exh. 15 vide order dated 20.02.2001 by Second Joint Civil Judge, Junior Division, Nagpur. The objections raised to the maintainability of Regular Civil Suit No. 1634 of 2000 were in the light of earlier litigation vide Regular Civil Suit No. 1214 of 1998 and pointing out provisions of Order 2, Rule 2, Section 11 and Section 151 of Civil Procedure Code. That application has been rejected.

(2.) The revision applicant claims to be a Builder and Developer and he has constructed a complex on Plot No. 21 and it is not in dispute that on front side as also on rear side of this plot, there are public roads. The grievance of the present nonapplicants No. 1 to 5, who filed Regular Civil Suit No. 1634 of 2000, is in relation to public road of 40 feet width on rear side of said plot No. 21. It appears that all plots located between these two public roads have got access on both roads. The nonapplicants No. 1 to 5 found that this access was creating congestion and, therefore, when plot No. 21 was sought to be constructed upon by a Builder to raise a commercial complex, they raised some objection with the sanctioning authority i.e. Nagpur Improvement Trust, which is non-applicant No.7 in this revision. The sanctioning authority, therefore, imposed certain conditions upon revision applicant while granting sanction to his building plan. The conditions required him, not to have any access or opening on said 40' wide road located at the rear side of this plot and to construct a 7 feet high compound wall in that direction. The applicant started his construction after obtaining the above sanction but ultimately he also fixed an iron gate on rear side so that occupants can approach directly from plot No. 21 on 40' wide public road. This led to filing of earlier Civil Suit No. 1214 of 1998.

(3.) The said suit was filed by present non-applicants No. 1 to 5 and in it present applicant filed an application under Order 7, Rule 11 of Civil Procedure Code, raising various objections to the maintainability of suit and particularly pointing out that as it was public road, abutting plot No. 21, he had right to enjoy access to that road. 7th Joint Civil Judge, Junior Division, Nagpur, vide its order dated 16.11.1998 accepted the contention of applicant, allowed his application at Exh. 18 and therefore, rejected the plaint. This rejection was then questioned by present non-applicants No. 1 to 5 by filing Regular Civil Appeal No. 109 of 1999 before 6th Additional District Judge, Nagpur. The appellate Court after hearing both sides concluded that no case was made out for interfering with the order under challenge before it. However, in para thereafter, it observed that the rejection of plaint would not bar or preclude the original plaintiffs from presenting a fresh plea when a cause of action actually accrues to them because of provisions of Order 7, Rule 13 of Civil Procedure Code. Taking advantage of this observation, the present Regular Civil Suit No. 1634 of 2000 came to be filed in relation to very same grievance. In this suit again vide Exh. 15, the present applicant raised similar challenge and pointed out that as controversy stood concluded because of earlier adjudication, the new suit was barred. The Court of Second Joint Civil Judge, Junior Division, Nagpur, on 20.02.2001 dismissed that application by pointing out that the suit was protected because of findings of appellate Court already mentioned above.