Court No. - 53
Case :- SECOND APPEAL No. - 1096 of 2019 Appellant :- Bijendra And 5 Others Respondent :- Jeet Singh Counsel for Appellant :- Ram Ashrey Kashyap,Ajay Kumar Srivastava
Hon'ble Vivek Agarwal,J.
Heard Sri Ajay Kumar Srivastava, learned counsel for the appellants.
This appeal has been filed by the appellants under the provisions of Section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 04.10.2019 passed by the Additional District Judge, Court No.2, Meerut in Civil Appeal No.266 of 2018 affirming the judgment and decree dated 28.11.2018 passed in original Suit No.486 of 2018 passed by the Additional Civil Judge (Junior Division), Court No.4, Meerut.
Appellant's contention is that he had filed a suit under Section 31 of Specific Relief Act claiming that defendants had obtained a judgment and decree dated 05.09.1998 and 09.09.1998 respectively by misleading the Court.
It is an admitted position that earlier defendants had filed a Suit No.1094 of 1993, Jeet Singh Vs. Munshi and others wherein plaintiffs in the present suit and appellants in the present appeal were the defendants and the suit was decreed in favour of Jeet Singh. It was directed vide judgment and decree dated 05.09.1998 that defendant shall not cause any obstruction in the right of passage of the plaintiffs. Thereafter defendants in that suit who are appellants before this Court filed a first appeal bearing No.412 of 1998 which was decided on its own merit on 02.12.2008 by the Additional District Judge, Court No.16 and this appeal was dismissed.
It is an admitted position that no second appeal was filed by the present appellants being aggrieved by judgment dated 02.12.2008.
Thereafter present suit was filed by the plaintiffs- appellants seeking anulment of the earlier judgment and decree. When such suit was filed, defendants herein moved an application under Order-7 Rule-11 claiming that such suit is not maintainable and is illegal and against the provisions of law because subject matter of the suit is same as was decided in Suit No.1094 of 1993, Jeet Singh Vs. Brijendra and judgment of which was affirmed by the first Appellate Court vide order dated 02.12.2008. This application moved by the defendants in the present appeal was accepted and suit has been dismissed by the learned Trial Judge.
First appeal filed by the plaintiffs-appellants has also been dismissed and therefore the present appeal.
Provisions contained in 31 of the Specific Relief Act, 1963 provides that under what circumstances cancellation may be ordered. It has been provided that when there is a reasonable apprehension that a written statement is void or voidable is left outstanding causing serious injury then proceedings can be brought to get it adjudged void or voidable and the Court may, in its discretion so adjudge it and order it to be delivered up and cancel.
In the present case facts are different, suit which was decreed on 05.09.1998 has attained finality and there is no material on record to substantiate that such judgment and decree as was affirmed in first Civil Appeal No.412 of 1998 is either void or voidable. Therefore, suit is not only hit by the provisions of res judicata but also provisions contained in Section 31 of the Specific Relief Act are not attracted to the facts and circumstances of the case.
In view of such facts, the concurrent findings recorded by the Courts below does not call for any interference and does not give rise any substantial question of law, therefore, appeal fails and is accordingly dismissed.
Order Date :- 26.11.2019 Ashutosh