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High Court of KeralaSingle JudgeDismissed

Jameela W/o Hameed (Late) v. Ubaid

Case / Petition Number:OP(C) No.692 of 2011 (O)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B.Kemal Pasha, J.
Judgment Date
2014-09-22
Court Decision / Holding
O.P.(Civil) No.692 of 2011 is dismissed.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • JAMEELA W/O.HAMEED (LATE) THODATH HOUSE, P.O. KOOTTAYI, MANGALAM AMSOM, KOOTTAYI DESOM, TIRUR TALUK.

Respondents

  • UBAID, S/O.MOHAMMED, HAJIYAREPURAKKAL, P.O.KOOTTAYI, MANGALAM AMSOM, KOOTTAYI DESOM, TIRUR TALUK - 676 101.

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI.K.K.MOHAMED RAVUF

Counsels for Respondents

  • • SRI.JAMSHEED HAFIZ

Case Synopsis & Summary

This Kerala High Court judgment concerns O.P.(C) No.692 of 2011 (O), filed by Jameela against Ubaid challenging an order in IA 66/2011 in OS 113/2008 before the Munsiff Tirur. The original suit, filed for injunction, involved two described plots; the Commissioner’s report revealed that plaint schedule item No.2 lacked a definite eastern boundary. The petitioner moved Ext.P4 to amend the plaint to fix the eastern boundary of item No.2 and alter its description (Ext.P5). The Munsiff’s Ext.P5 order rejected the boundary relief but allowed the description amendment. The petitioner then pursued Ext.P6 seeking the same boundary relief, which was dismissed by Ext.P7 as barred by a prior order (IA 3029/2010). The petitioner argued that Ext.P7 is not final and should not operate as res judicata, citing AIR 1972 SC 1201 and AIR 1960 SC 941, and contended for substantial justice via amendment. The respondent countered this position. The High Court ultimately dismissed the petition, observing that after the CPC amendments (Section 105(2)), the locus of relief remains governed by res judicata principles and interlocutory orders in the same proceedings bind later stages. The judgment emphasizes that substantial justice must be balanced against finality, and concludes that the O.P. lacks merit and is dismissed.

Provisions of Law Cited

Code of Civil Procedure, 1908, Section 105(2)

Legal Doctrines & Maxims

  • Res judicata
  • Estoppel
  • Interlocutory orders binding subsequent stages of the same proceedings
  • Substantial justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P7 is not final and cannot operate as res judicata since Ext.P5 did not finally determine the rights regarding the boundary. Relying on AIR 1972 SC 1201 (The United Provinces Electric Supply Co., Ltd v. T.N.Chatterjee) and AIR 1960 SC 941 (Satyadhyan Ghosal v. Smt. Deorajin Debi), the petitioner argues that remand-like issues or matters left undecided can be challenged in superior courts, and that Section 105(2) of the CPC now governs such matters, creating a potential reopening of relief. The petitioner further asserts that substantial justice requires amendment to fix the boundary, especially since the Commissioner’s report indicated the missing eastern boundary for plaint schedule item No.2. The argument emphasizes that denial of amendment should not deprive the plaintiff of a fair opportunity to present her case.

Contentions of Respondents

The respondents contend that the order under challenge (Ext.P7) has binding effect within the ongoing proceedings and that the relief seeking boundary fixation is barred by prior determinations, including the interlocutory order. They assert that allowing repeated relief would undermine finality and the settled course of the suit. The respondents also rely on the principle that a party cannot repeatedly press the same relief in the same suit, especially following the earlier order and the corresponding IA proceedings.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
The United Provinces Electric Supply Co., Ltd v. T.N.Chatterjee and othersAIR 1972 SC 1201Mentioned OnlyCited to discuss remand-order challenges; the position has evolved post-CPC 105(2), affecting its applicability.
Satyadhyan Ghosal v. Smt.Deorajin DebiAIR 1960 SC 941OverruledOriginally supported challenging remand scope; amended by CPC 105(2) to operate as res judicata, superseding the earlier view.
Sukhrani v. Hari ShankerAIR 1979 SC 1436Mentioned OnlyCited for the notion that an earlier interlocutory decision may bind later stages; its relevance is affected by the CPC amendment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 22ND DAY OF SEPTEMBER 2014/31ST BHADRA, 1936 OP(C).No. 692 of 2011 (O) -------------------------AGAINST THE ORDER IN IA.66/2011 IN OS 113/2008 of MUNSIFF COURT, TIRUR ## PETITIONER/PETITIONER: ------------------------------------ JAMEELA W/O.HAMEED (LATE) THODATH HOUSE, P.O. KOOTTAYI, MANGALAM AMSOM, KOOTTAYI DESOM, TIRUR TALUK. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT: --------------------- UBAID, S/O.MOHAMMED, HAJIYAREPURAKKAL, P.O.KOOTTAYI, MANGALAM AMSOM, KOOTTAYI DESOM, TIRUR TALUK - 676 101. BY ADV. SRI.JAMSHEED HAFIZ THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP(C).No. 692 of 2011 (O) ## APPENDIX ## PETITIONER'S EXHIBITS: - EXT.P1 : TRUE COPY OF THE PLAINT IN OS 113/2008 OF THE MUNSIFF COURT, TIRUR. - EXT.P2 : TRUE COPY OF THE WRITTEN STATEMENT. - EXT.P3 : TRUE COPY OF THE REPORT AND PLAN. - EXT.P4 : TRUE COPY OF THE APPLICATION FOR AMENDMENT OF THE PLAINT. - EXT.P5 : TRUE COPY OF THE ORDER DT.22.12.2010 IN I.A.3029/2010 IN OS 113/2008 OF MUNSIFF COURT, TIRUR. - EXT.P6 : TRUE COPY OF THE IA.66/2011 IN OS.113/2008 OF THE MUNSIFF COURT, TIRUR. - EXT.P7 : TRUE COPY OF THE ORDER DT.11.1.2011 IN IA.66/2011 IN OS.113/2008 OF THE MUNSIFF COURT, TIRUR. ## RESPONDENTS' EXHIBITS : NIL // TRUE COPY // PA TO JUDGE ## **B.KEMAL PASHA, J.** - - - - - - - - - - - - - - - - - - - -- - - - ## O.P.(Civil) No.692 of 2011 O - - - - - - - - - - - - - - - - - - - -- - - - Dated this the 22[nd] day of September, 2014 ## JUDGMENT Dissatisfied with Ext.P7 order dated 11.1.2011 passed by the Munsiff's Court, Tirur in I.A. No.66 of 2011 in O.S. No.113 of 2008, the petitioner has come up with the present O.P.(C). 2. The petitioner plaintiff, had originally filed the suit as O.S. No.113 of 2008, before the court below as a simple suit for injunction seeking a decree against trespass etc. Two items of properties were scheduled in the plaint as plaint schedule Item Nos.1 and 2. Plaint schedule item no.1 is a plot having 10 cents and plaint schedule item no.2 is a plot having an extent of 5 cents. The property situated at the eastern side of the said 5 cents, belongs to the defendant. A commission was taken out in the matter and the Commissioner had filed a report. When Commissioner's report came, it was revealed that there was no _O.P.(C.) No.692 of 2011_ 2 eastern boundary at all, as far as the plaint schedule item No.2 is concerned. In such a context, the petitioner has preferred Ext.P4 application seeking an amendment of the plaint for incorporating the relief for fixation of the eastern boundary of plaint schedule item No.2 and also for amending the eastern boundary description of plaint schedule item No.2. The court below, through Ext.P5 order, has denied the amendment for incorporating the relief for fixation of the eastern boundary on the plaint schedule item No.2; at the same time, allowed the amendment to be carried out with regard to the description of plaint schedule item No.2. 3. Dissatisfied with the Ext.P5 order, the petitioner filed Ext.P6 application once again by detailing the grounds on which the amendment for incorporating the relief for fixation of boundary was sought for, by once again seeking the very same relief. The court below has dismissed Ext.P6 application through Ext.P7 order by stating that the said prayer was earlier rejected in I.A. No.3029 _O.P.(C.) No.692 of 2011_ 3 of 2010 and therefore, Ext.P6 I.A. seeking the very same relief, is not maintainable. 4. Heard the learned counsel, Shri.K.K.Mohammed Ravuf, for the petitioner and the learned counsel, Shri.Jamsheed Hafiz, for the respondent. 5. According to the learned counsel for the petitioner, as Ext.P5 order is not one which has finally determined the rights of parties, it will not operate as res-judicata and therefore the petitioner was not estopped from filing Ext.P6 application seeking the very same relief. The learned counsel for the petitioner has relied on the decision in **The United Provinces Electric Supply Co., Ltd v. T.N.Chatterjee and others** (A.I.R. 1972 SC 1201), in which the Apex Court has relied on **Satyadhyan Ghosal v. Smt.Deorajin Debi** (A.I.R. 1960 SC 941). That decision was pertaining to a remand order. In the case of a remand order, it was held therein that even after passing the judgment and decree, the _O.P.(C.) No.692 of 2011_ 4 scope of the remand could be challenged before the superior court. That position has changed after the amendment of the Code of Civil Procedure 1908, when Section 105(2) has been incorporated. Presently, the same will operate as res-judicata. The learned counsel for the petitioner has relied on the decision in **Sm** t. **Sukhrani v. Hari Shanker** (A.I.R. 1979 SC 1436). It was held in paragraph 5 that: “It is true that an earlier stage of the suit, in the proceeding to set aside the award, the High Court recorded a finding that the plaintiff was not entitled to seek reopening of the partition on the ground of unfairness when there was neither fraud nor misrepresentation. It is true that the plaintiff did not further pursue the matter at that stage by taking it in appeal to the Supreme Court but preferred to proceed to the trial of his suit. It is also true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation.” _O.P.(C.) No.692 of 2011_ 5 6. When an interlocutory order has been passed by the court below, the court below is bound by the said order in the subsequent stage of the very same proceedings. Therefore, the party is estopped from filing the very same application once again before the court below in the very same proceedings. Even the case of the remand order, the position as described in the decision in **Satyadhyan Ghosal v. Smt.Deorajin Debi** (supra) has changed on the incorporation of Section 105(2) of the Code of Civil Procedure, through the amendment. 7. Lastly, the learned counsel for the petitioner has argued that at least for maintaining substantial justice, the petitioner/ plaintiff should be permitted to amend the plaint by incorporating a relief for fixation of boundary in this case. The suit as it stands now is one for injunction. Even if the relief for injunction is granted or denied, it will never preclude the plaintiff from filing another suit for fixation of boundary, if so advised. Therefore, _O.P.(C.) No.692 of 2011_ 6 there is no question of any denial of substantial justice, even if there is any denial of opportunity of amending the plaint by incorporating a relief for fixation of boundary in this case. Matters being so, this court is of the view that this O.P.(C) is devoid of merits and is only to be dismissed, and I do so. In the result, this O.P.(C) is dismissed. Sd/- **B.KEMAL PASHA** , JUDGE _dl_ _// TRUE COPY //_