- (1.) This is a regular second appeal by the plaintiff who filed a suit for declaration that the order passed by the Collector under the Punjab Village Common Lands Act ordering him to remove the encroachment made on the village phirni (circular road) was illegal and void. He also prayed for permanent injunction restraining the defendant Gram Panchayat from demolishing the said construction.
(2.) The suit in the trial Court had a chequered history, but I will notice only those orders which are relevant for the purpose of this appeal. After the question of grant of ad interim injunction was decided by this Court, the parties appeared in the trial Court for the first time on June 13, 1977, when the suit was adjourned to September 24, 1977, for evidence of the plaintiff. On September 24, 1977, the plaintiff failed to produce his evidence and the case was again adjourned to November 2, 1977 to afford another opportunity to the plaintiff on payment of Rs. 10/- as costs. On September 30, 1977, the plaintiff filed an application for appointment of a local Commissioner to take measurements at the spot and report if any encroachment has been made by him on the circular road of the village. This application was dismissed by the trial Court vide order dated October 5, 1977, on the ground that the application was delayed and that on merits the application was not justified. When the suit came up for hearing on November 2, 1977 no witness was produced or summoned by the plaintiff with the result that his evidence was closed under Order 17, Rule 3, Civil Procedure Code and the suit dismissed. On appeal, the learned Additional District Judge, Jind, confirmed the decree of the trial Court holding that it was not open to the plaintiff to challenge the order of the trial Court dismissing his application for the appointment of a commissioner because revision petition against that order had been dismissed by this Court.
(3.) Mr. R.S. Mittal, the learned counsel for the appellant, has brought to my notice that the revision petition filed by the appellant had been dismissed in limine. The disposal of a revision petition in limine does not bar the party from challenging the interlocutory order in the regular appeal filed against the final decree. Reference in this connection may be made to a Division Bench decision of this Court in Roop Kishore v. Firm Raghbir Singh Baboo Ram and others, 1970 1 ILR(P&H) 533, wherein Nrula, J. (as he then was) overruled a similar objection with the following observations :- "that whenever a decision of a Court is claimed to bar the re-opening of the matter which was urged at the earlier stage, it is only, if and when the earlier decision was given by a Court of competent jurisdiction on the merits of the controversy that the re-opening of the controversy at a later stage is barred on general principles of res judicata. If, however, the earlier decision is not given on the merits of the controversy, and if the Court merely declines to go into the merits at the earlier stage either because of an alternative remedy being available or because it is in the discretion of the Court to go into the merits of the matter at that stage or not, the mere refusal by the Court to hear the matter or to entertain the petition or the mere declining of the Court to decide the matter at the earlier stage for any such reasons will not bar the hearing of the matter in controversy at a later stage where it can otherwise be appropriately heard." Following the Division Bench decision, Pattar, J. in Ishar and others v. Sudesh Kumar and another, 1973 75 PunLR 323, held that when the trial Court dismissed an application for allowing an amendment of written statement and revision against that order was dismissed in limine the order of the trial Court can be attacked in second appeal against a decree passed in the suit. The learned Additional District Judge, therefore, illegally declined to exercise jurisdiction in not allowing the appellant to challenge the correctness of the order of the trial Court refusing to appoint a local Commissioner.;