- (1.) IN this writ petition Mr. Ravi Kant, learned Counsel for the petitioner has sought for quashing the proceeding of Suit No. 23ofl978raghuraj Prasad v. Shayama Devi, pending in the Court of Additional Civil Judge, Junior Division, VIIIth Court, Allahabad on the ground that the suit is frivolous and patently if appears on the face of it is not maintainable. However, Mr. Ravi Kant very fairly conceded that this point was never taken in the Court below, on the other hand only when the application for amendment has been allowed and the revision there out was dismissed the present application has been filed.
(2.) IN order to appreciate the conten tion of Mr. Ravi Kant, learned Counsel for the petitioner, it is necessary to briefly refer to the facts of the case. It is alleged that the suit property was recorded in the name of one Ram Narain in the records of the Nagar Mahapalika. The said Ram Narain died on 24-7-1959. The name of respondent No. 3 herein was recorded in the records of Nagar Mahapalika as successor of the deceased on 23-11-1964. On 21-12- 1964 the said record mutating the name respon dent No. 3 was struck off and instead the name of the petitioner was mutated. Thereupon respondent No. 3 filed Original Suit No. 314 of 1966 for declara tion that the order dated 21-12-1964 is null and void. The said suit was filed before the 1st Additional Munsif, Allahabad. In the judgment passed in the said suit, respon dent No. 3 was found not to be a member of the family of the deceased Ram Narain. Thereafter respondent No. 3 instituted a suit No. 203 of 1971 for declaration that the plaintiff is the sole heir of Ram Narain and as such he is exclusive owner of the property and alternatively for possession. The plaint of the said suit was rejected on account of non-payment of deficit Court fee within the time fixed. No appeal was preferred against the said rejection of the plaint. Neither the said order was sought to be recalled. On 9-1-1978 suit No. 23 of 1978 was filed by the plaintiff for declara tion that the plaintiff is the sole heir of late Ram Narain and Gauri Shankar and the defendant petitioner was not the heir. This suit was dismissed on 4-10-1982 being barred by Section 34 of the Specific Relief Act. An appeal was preferred by plaintiff-respondent No. 3 which was allowed on 12-10-1983 permitting the plaintiff to amend the plaint seeking further reliefs. Or 11-11-1983 the plaintiff filed an ap plication for amendment. In the meantime the petitioner had preferred an appeal before this Court against the order dated 12-10-1983 which ultimately dismissed by this Court on 18-12-1996. Respondent No. 3 moved another application for amend ment on 28-11-1997. A further application for amendment was filed on 2-12-1997. Another application for amendment was filed on 2-1-1998. However, by an order dated 29-1-1998 the trial Court allowed the application for amendment filed on 11-11-1983. The revision there out was dis missed by an order dated 16-3-1998 passed by the learned Additional District Judge, VIIIth Court, Allahabad. At this stage, the petitioner has come before this Court seeking the relief as mentioned above. Mr. D. N. Tyagi, learned Counsel assisted by Mr. N. K. Sharma, learned Counsel for respondent No. 3 opposes the said case on the ground that on merits it appears that the subsequent suit is not barred by resjudicata and as such cannot be treated to be an abuse of process of law in order to attract the contention of Mr. Ravi Kant that the proceeding being an abuse of process of law on the face of it, it should be quashed. On the other hand, he contends that this is a question to be gone into by the Court below and has come to a particular finding that as to whether the suit is barred by res judicata as has been sought to be urged by Mr. Ravi Kant. He relies on various decision as to the nature and ex tent of res judicata and when the said prin ciple applies and contends that on the basis of the ratio decided, in the facts and circumstances of the case, the principle of res judicata does not apply since the scope of different decisions are altogether dif ferent though the parties and property involved may be same. The question of res judicata according to him is on (he basis of relief sought for and the issue decided and being the issues which are called upon to be decided in such proceeding. Therefore, according to him this petition should be dismissed.
(3.) I have heard Mr. Ravi Kant learned Counsel for the petitioner Shri D. N. Tyagi, learned Counsel for respondent No. 3 at length. Plaint of suit No. 314 of 1966 is annexed as Annexure-SCA-I to the sup plementary counter-affidavit filed on be half of respondent No. 3. In the said plaint cause of action was alleged to have arisen on 21- 12-1964 and on 4-8-1965. On the basis of such cause of action, the relief was sought to the extent that the order dated 21-12-1964 passed by the Nagar Mahapalika is not binding on the plaintiff and that his name should be mutated in stead of the name of petitioner herein. In the said suit alongwith the Nagar Mahapalika, the petitioner was made party. The readings as has been made out in the plaint shows that the respondent No. 3 as plaintiff therein had claimed ab solute title to the property on the death of said Ram Narain as heir to the deceased. In the said suit it was open to him to pray for declaration of such right or title in respect of the property but he has himself omitted to incorporate such prayer which he is precluded if he does not do so in view of proviso to Section 34 of the Specific Relief Act. Be that as it may, issues were framed in the said suit on the basis of the pleadings. Issue No. 3 was framed as to whether the order dated 21-12-1964 was illegal and not binding on the plaintiff. While issue No. 6 was framed as to whether the plaintiff was a member of the family of Ram Narain. In fact in order to grant the relief as prayer for in the said plaint, it was necessary to find out as to whether the right claimed by the plaintiff as owner of the property against the defendant has been able to prove that he has right, title and interest so as to get the order dated 21-12-1964, recording the name of the defendant, in the records of the Nagar Mahapalika, cancelled. These issues were gone into and decided by the judgment and decree dated 15-12-1970 passed in suit No. 314 of 1966 holding infer alia that the recording of the name of the petitioner by the Nagar Mahapalika was not illegal and that the plaintiff was not the member of the family of Ram Narain.;