- (1.) D. P. Singh, J. Heard learned Counsel for the petitioner.
(2.) THE earlier Counsel for the respondent No. 3 having been elevated to the bench notices were issued under the High Court Rules to the respondent No. 3 in 1999 for engaging another Counsel. Even though notice was deemed sufficient, in view of the office report dated 10th July, 2003, none has appeared for the respondent No. 3 even in the revised list. Thus, there is no option for the Court but to proceed with the hearing of the case, since the matter is about 20 years old. This writ petition is directed against an appellate order dated 8th November, 1982 by which an interim injunction order has been granted in favour of the respondent No. 3 with regard to his eviction from the disputed premises. The petitioner is the landlord owner of house No. 3/63, Chhata Bazar, Agra, which was rented out to firm known as M/s. Ghasi Ram Laxami Narain. The firm defaulted in payment of rent resulting in suit No. 447 of 1979 for ejectment and arrears of rent. After contest the said suit was decreed by judgment dated 8-4-1980. In the suit respondent No. 3 who is son of Ghasi Ram and the real brother of Laxami Narain had appeared as defence witness No. 3. Aggrieved, against the decree an appeal was filed where in the Municipal Board, Agra also sought impleadment which was rejected by order dated 9-10-1980. The appeal was also dismissed on 17-10-1980. A second appeal was filed before this Court however, no stay order was granted. When the decree was sought to be put into execution, the respondent No. 3, real brother of Laxami Narain who constituted the aforesaid firm instituted suit No. 610 of 1980 for permanent injunction wherein he made an application for temporary injunction. The interim injunction application was rejected by the Trial Court on 23-5-1981 holding that in view of the decree already passed and the fact that the respondent No. 3 himself had appeared as a witness, he could not set up an independent claim at this stage. Aggrieved, the respondent No. 3 filed a miscellaneous appeal which was allowed by the impugned order dated 8-11-1982.
(3.) THE learned Counsel for the petitioner has urged that the suit of respondent No. 3 was hit by the principles of res judicata and in fact the entire exercise was an abuse of process of the Court. He has also urged that the finding of the appellate Court that Nagar Mahapalika, Agra was claiming the title over the disputed land which was totally a farce, in view of the fact that the claim of Nagar Mahapalika had also been rejected in the first suit filed by the petitioner. From a perusal of the judgments dated 8-4-1980 and 23-5-1981, it is evident that the respondent No. 3 has been set up to some how secure possession in favour of the firm against which a decree is operating. In my view the second submission of the learned Counsel for the petitioner is well founded that the second suit is barred by principles of res judicata. THE finding of the lower appellate Court with regard to prima facie case was totally erroneous. It has not been denied that the decree has become final and in fact the respondent No. 3 was never a tenant. THE contention with regard to the open piece of land and Chabutra has already been dealt in detailed in the earlier suit in the appellate order dated 17-10-1980. THErefore, both the contentions of the learned Counsel for the petitioner are well founded and have to be accepted. This is one of those cases where the process of Court has been abused to gain illegal advantage. The respondent No. 3 has been able to stall eviction from the disputed premises for more than 20 years and as such this is a fit case where the exemplary cost should be awarded against the respondent No. 3.;