Hon'ble Abhinava Upadhya, J. - (1.) BY means of this writ petition, the petitioners have challenged an order of the court below by which issue no. 6, i.e. with regard to the fact whether or not second suit was barred by principles of res judicata, was decided in the negative, vide order dated 15.9.199 (annexure -10 to the petition), holding that the second suit was not barred by the principles of res judicata, against which a revision was filed and the same was also dismissed vide order dated 7.7.2001 (annexure -12 to the petition). Brief facts of the case are that respondent nos. 1 and 2 have filed a suit for permanent injunction, being suit no. 183 of 1990, in respect of suit -property (Premises No. 183/90, Plot No. B -17, area 4480 sq. ft.) situate in Mohalla Orderli Bazar, Bhuwaneshwar Nagar Colony, Varanasi. The plaintiff -respondents in the aforesaid suit had claimed relief that the defendant -petitioners be restrained from interfering with the possession of the plaintiffs and further they may also be restrained from demolishing walls existing thereon and also from taking the possession. In the said suit an amendment application was subsequently filed by the plaintiffs therein on 9.10.1991 praying therein that during the pendency of the suit the defendant -petitioners have taken over possession of the suit -property in question and have raised constructions; therefore, the constructions be removed and possession be delivered to the plaintiffs.
(2.) THE said amendment application was rejected by the trial court vide its order dated 19.5.1993, against which a revision was filed and the revision was also dismissed vide order dated 23.8.1994. The revisional court, however, gave a liberty to the plaintiff -respondents to move a fresh application giving better details with regard to the dates, etc. It is submitted that the petitioners, instead of moving a fresh application, as permitted by the revisional court, filed a fresh suit, being Suit No. 1229 of 1994, for recovery of possession. In the second suit, the defendant -petitioners filed their written statement (annexure -9 to the petition) stating therein that the second suit was not maintainable as the petitioner had for the same relief already filed a suit and the same was pending. The court below in the second suit did not accept the contention of the petitioners and a specific issue was framed with regard to question whether or not the suit is barred by principles of res judicata. This issue, being Issue No. 6, was decided in favour of the plaintiff -respondents on the ground that the relief sought for in the first suit was distinct from the relief sought in the second suit. It was held that in the first suit that the relief sought for was prohibitory injunction, whereas in the second suit it was for recovery of possession. On this ground it was held that the second suit was maintainable. Against this order, the petitioner -defendants filed a revision which was also rejected and the same is subject -matter of this writ petition.
(3.) I have considered submissions made by learned counsel for the parties.;