Resjudicata
ajay sethi
(Querist) 07 January 2012
This query is : Resolved
1)elections were held for managing committee of association .
2)secretary was elected . on account of compalints of rigging in elections elected secretary was suspended .
3) show cause notice issued and after inquiry complaint of rigging was confirmed .
4)report of inquiry officr was forwarded to suspended secretary and reply sought . since no reply received and since evidence of rigging found managing committee declared defeated candidate elected as he had in fact polled more votes .
5) suit filed by ex secretary in court . however since he had not sought any declaratory reliefs application for injunction refused restraining the association from apponitng defeated candidate as secretary .
6) since no injunction was granted ex secretary made an application for amendment of plaint . application allowed .
7) the ex secreatry has taken out another application after emendemnt of plaint seeking an injunction restraining assocaition from appaonting defeated canduidate as secretary .
the query is
whether an indential application can be taken out by ex secretary for same reliefs when earlier application was rejected in same suit ?
whether principle of resjudicata would be applicable ?
Raj Kumar Makkad
(Expert) 07 January 2012
Such application cannot be brought by the plaintiff again in the same suit. He is barred under section 11 of CPC. Otherwise also his injunction application is infrucuous in view of the fact that the alleged defeated secretary has already assumed charge and is working properly. There is no question of restraining to take charge thereon. Final relief cannot be provided by way of interim injunction.
Res judicate is applicable as asked for.
Nadeem Qureshi
(Expert) 08 January 2012
Dear Mr. Sethi I agree with Mr. Makkad
R.Ramachandran
(Expert) 08 January 2012
Resjudicate will apply only when the matter is finally adjudicated between the parties.
Inter locutary applications cannot be treated as the matter of adjudication.
Therefore, there can be no 'resjudicata' as far as the application is concerned.
However, as correctly pointed out by Mr. Makkad, such an application would be infructuous since a new secretary stands appointed by the Society and functioning.
ajay sethi
(Querist) 08 January 2012
Mr ramchandran in Satyadhyan Ghosal v. Smt. Deorajin Debi Supreme court has held , the principle of Res Judicata is invoked in the case of the different stages of proceedings in the same suit
in the present case notice of motion was rejected on grounds that declaratory reliefs were not sought in suit so no injunction can be granted restraining association from appointing defeated candidate as secretary .
under the circumstances if another application is taken out for same reliefs ie order restraining association from appointing defeated canddiate as secretary after carrying out necessary amendments to plaint would it not be resjudicata?
ajay sethi
(Querist) 08 January 2012
mr makkad it would not be infructous as although he has assumed charge the election was for priod of 3 years and balance term of 6 months is left
Raj Kumar Makkad
(Expert) 08 January 2012
Sethi ji! You again read the contents of subsequent application which demands restraining the society to appoint the defeated secretary to take charge so this application is infructous. Had the applicant moved the application seeking restrainment for further functioning then the situation might have been differ. In that event also, court would not have entered the application because the final relief and interim reliefs are same.
Raj Kumar Makkad
(Expert) 08 January 2012
Ramachandran ji! It is difficult to be agree with you on the question of res-judicata on the interim application in view of the case law pronounced by Hon'ble Supreme Court in Satyadhyan Ghosal v. Smt. Deorajin Debi case. I am still firm on my stand.
R.Ramachandran
(Expert) 08 January 2012
Dear Mr. Sethi,
The earlier interim order rejecting the prayer for injunction was on the ground that no declaratory relief had been prayed for in the main suit.
When the amendment had been allowed (i presume to be so) in the main suit to add a prayer for declaratory relief, then I do not think there can be any bar for bringing in a fresh interim application praying for injunction in view of the altered situation.
This I am saying despite the decision of the SC in Satyadhyan's case - which is distinguishable.
Further, such an application would still be infructuous to the extent that the Society cannot be restrained from appointing the secretary, though the Secretary himself can be restrained from functioning as such.
prabhakar singh
(Expert) 08 January 2012
What i can say even without going for any case law that if any interim application is decided on merit then it would achieve its finality for grounds alleged there in and no fresh application on the same very ground would lie.
But if circumstances has changed and some new things have emerged for moving the application then second application would lie.
In addition I would also like to say that if any application is dismissed for want of some technical defects of which law allows cure then after curing the defect,the same application on same ground can be moved.
prabhakar singh
(Expert) 08 January 2012
Patna High Court - Orders
Sriman Narayan Sharan vs Prakash Narayan Pd.& Ors on 9 September, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA FIRST APPEAL No. 104 OF 2011
Sriman Narayan Sharan ------------Plaintiff/Appellant Versus
Prakash Narayan Prasad & Ors ---------Defendants/Respondents ********
Dated : 9thday of September, 2011
"25. In view of the above discussion, it appears that if the respondent is not restrained from transferring or alienating the suit property by executing power of attorney, there shall be multiplicity of proceedings. In this subsequent change of the facts and circumstances of the case put forth by the appellant, it cannot be said that the Court has no jurisdiction or that the Court is helpless or powerless to restrain the defendants from transferring or alienating the property. The respondents in view of the above admitted position cannot be allowed to act in such a manner so as to vanish the suit property itself. Therefore, I find that the appellant has got prima facie case and if no injunction is granted, the appellant shall not only suffer serious loss and irreparable injury but also there shall be many subsequent litigation regarding subject matter of the suit and, therefore, the balance of convenience is also in faovur of the appellant as if injunction is granted neither hardship will be caused to the respondent nor the respondent shall suffer any loss or injury.
26. In view of the above discussion, in my opinion, this is a fit case where the respondents should be specifically restrained from transferring or alienating the suit property and, therefore, I hereby restrained the respondent No.1 from transferring or alienating the suit property by himself or through power of attorney holders during the pendency of this appeal.
27. In the result, the interlocutory application No.4378 of 2011 filed by the appellant stands allowed."
ajay sethi
(Querist) 08 January 2012
thanks MR makkad / Mr Ramchandran / Mr prbahakar singh for your replies
