During pendency of appeal second application seeking same relief was filed on same set of facts forming subject matter of first application Not maintainable being hit by principles of res judicata.

Citation
AIR 2000 cal 89

CDJ 1999 cal.HC 337

Civil Procedure Code, 1908 - Order 40 Rule 1(9), Section 11 -

Comparative Citation:
2000 AIR(Cal) 89,

Judgment:

1. This civil revision under S. 115 of the Code of Civil Procedure is directed against a judgment dated May 28, 1997 passed by the learned Additional District Judge, 1st Court at Alipore whereby the Misc. Appeal filed by the respondents against the order dated June 30, 1992 passed by Sri. S. L. Biswas, learned Assistant District Judge, 9th Court at Alipore was allowed and the aforesaid order dated June 30, 1992 was set aside.

2. Petitioners in the present civil revisional application are the plaintiffs in a suit filed in the year 1984. The suit is for partition and relates to the entire assets of the business being carried out under the name and style of 'Dacca Cinema Cabin' at 56, Park Street, Calcutta. In this pending suit the plaintiff-petitioners filed an application under Order 40 Rule 1(a) of the Code of Civil Procedure for appointment of a Receiver. Vide the order number 66, dated March 29, 1988 the learned Assistant District Judge seized of the aforesaid suit dismissed the application of the petitioners-plaintiffs by holding that on proper consideration of the circumstances it was not just and convenient to appoint any Receiver in respect of the suit property and the buisiness.

3. I have seen that order and I find that it was passed by the learned Asstt. District) Judge on contest and it is an elaborately speaking and very well-reasoned one. Against this order a Civil Misc. appeal was filed by the plaintiff-petitioners in this Court being F.M.A.T. No. 2690 of 1988 (F.M.A. 178 of 1996). A Division Bench of this Court vide judgment and order dated June 15, 1999 summarily dismissed the appeal in terms of Order XLI, Rule 11 of the Code of Civil Procedure but however observing that such dismissal should not influence the outcome of the present revisional application.

4. Even while the aforesaid civil Misc. Appeal (F.M.A.T. 2690 of 1988 FMA 178 of 1996) was pending in this Court (curiously enough no steps were taken for almost eleven years for having this appeal listed for consideration for being admitted under O. XLI, Rule 11 of the Code of Civil Procedure), a new application was filed by the plaintiff-petitioners before the learned trial Court once again under Order 40, Rule 1 of CPC for appointment of a Receiver. Vide Order dated June 30, 1992 (supra) Sri S. L. Biswas, Learned Assistant District Judge, 9th Court at Alipore who was at the relevant time was seized of the suit allowed this application of the petitioner-plaintiffs and appointed one smt. Subhra Das, a learned Advocate as Receiver with certain directions upon her.

It was this order which was challenged by the respondents before the learned Additional District Judge, 1st Court at Alipore, who vide the judgment and order dated May 28, 1997 allowed the appeal and set aside the order of the learned Assistant District Judge.

5. I have heard the learned Advocates for the parties and considered their rival contentions. This revision petition deserves to be dismissed only on one ground. The ground is that it was not open to the learned trial Court to have allowed, even entertained a fresh application for appointment of a Receiver in the year 1992 when a similar application of the petitioner-plaintiffs was dismissed on contest and on merits by the same Court in the year 1988 through the medium of a reasoned and speaking order. The maintainability of the second application for the same relief was patently barred on the principles of res judicata. The second application might have been maintainable, had the petitioner-plaintiffs brought to the notice of the learned trial Court certain new facts which had occurred) after the dismissal of the first application. Admittedly, no such new facts were either alleged or mentioned in the second application. Admittedly, the second application was not at all based on any new facts, but was squarely based only on such facts which had formed the subject-matter of the first application.

6. I have very carefully gone through the order dated June 30, 1992 and find that even the learned trial Judge did not take the trouble of examining as to how the second application was maintainable, even though the fact of earlier dismissal of the first application was brought to his notice. The following observations were made by the learned trial Court with regard to the maintainability of the second application :

"......In my opinion, the subsequent application for appointment of a fresh Receiver is maintainable in law as contained under Order 40, Rule 1, CPC. An application for appointment of a fresh Receiver is not barred by law, particularly, when I find that new facts and circumstances have arisen in the instant suit. There is no inflexible rule for appointment of a Receiver, particularly, in a suit for partition and accounts in this case......"

7. My repeated queries to the learned Advocate for the petitioners to point out to me any such fact which could have occurred after 1988 has elicited no response. The learned trial Judge himself also has not mentioned in the Order any such fact which according to him could have been a new fact, having occurred after the dismissal of the first application.

8. Mr. Das Gupta, learned Advocate appearing for the respondents on the other hand showed to this Court a copy of the second application for appointment of the Receiver in which I found that no such facts as might have occurred after dismissal of the first application was mentioned by the petitioner-plaintiffs.

9. In this background, therefore, the above-referred observations made by the learned trial Court are not only meaningless, but also totally out of context in so far as the material available on record is concerned.

10. It is my painful duty to observe that the learned trial Judge erroneously and by total misapplication of law entertained the second application and allowed it, in utter disregard to the established principles of law that the second application was not maintainable and was barred by res judicata. It appears to me that the learned trial Judge is not well-versed with the basic and elementary principles of substantive law or, alternatively, he by a total callousness and utter disregard of the Rules of propriety ignored such well established legal norms and elementary principles of law by allowing himself to pass the impugned order, despite the fact that the relief claimed in the second application had been refused earlier and that second application was not maintainable. I am saying so more particularly because the above-quoted observations of the learned trial Judge are without any basis and foundation.

11. The petitioner also abused the process of the Court by filing second application and by seeking relief regarding the appointment of Receiver on the same set of facts as were forming the subject matter of the first application. The conduct of the petitioner was not above board. This is amply clear from the fact that the Civil Miscellaneous Appeal filed against the Order dt. 29th March, 1998 in 1998 itself was allowed by the petitioner to drag on till June 1999. For full eleven years the petitioner did not take any steps either in prosecuting this Appeal or in having it enlisted for appropriate orders.

12. For the above-stated reasons therefore I am convinced that the judgment of the learned Additional District Judge under challenge in this petition does not suffer from any illegality or irregularity. This judgment is based on sound principles of law, the same is accordingly upheld and the revision petition is dismissed with costs assessed at Rs. 5000/-.

13. Before parting I do wish to observe that nothing said in any interlocutory order passed by any Court, including the order dated May 28, 1997 passed by the learned Additional District Judge, 1st Court at Alipore shall influence the outcome of final proceedings in the suit between the parties. I also direct the learned Registrar General of this Court to place a copy of this judgment in the personal file of Sri S. L. Biswas, who was at the relevant time the Assistant District Judge, 9th Court at Alipore.

Key word
#resjudicata
#interlocatoryapplication