Bombaybench High Court
Case Details
{1} SA 745.15.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 745 OF 20151. Rewannath s/o. Bhaskar Pilgar,Age 48 years, Occ. Businesssince deceased through LRs1-A Ranjana Rewannath Pilgar, Age 50 years, Occ. Household, 1-B Sachin Rewannath Pilgar, Age 30 years, Occ. Service.1-C Aditya Rewannath Pilgar, Age 18 yea s, Occ. Education, All R/o. Bachkar Wasti Galnimb Tal. Shrirampur, Dist. Ahmednagar.2.Ashok s/o. Babrao Bahule,Age 46 years, Occ. Business,3.Namdeo S/o. Gangaram Jate,Age 50 years, Occ. Business,All R/o. Gamnimb, Tq. Shrirampur,Dist. Ahmednagar... APPELLANTS ( Orig. Defendants 3 to 5)VERSUS1.Tarabai w/o. Raghunath Shinde,Age 43 years, Occ. Household,R/o. Galnimb, Tq. Shrirampur,Dist. Ahmednagar.2.The State of Maharashtrathrough the Collector, Ahmednagar.3.The Engineer,Public Works DepartmentShrirampur Sub-Division, Shrirampur,
Legal Reasoning
{2} SA 745.15.odtDist. Ahmednagar... RESPONDENTS,( Resp. No.1 Orig. plaintiffs& Respondent Nos. 2 and 3orig. Defendant Nos. 1 & 2 .…Mr. Rahul A. Tambe, Advocate for appellants,Mr. R.R. Karpe, Advocate for respondent No.1Mr. V.S. Badakh, AGP for respondent Nos. 2 and 3. CORAM :S.G. CHAPALGAONKAR, J. DATE : 16th APRIL, 2025. JUDGMENT :-1. The appellants/original defendant Nos. 3 to 5 impugn thejudgment and decree dated 13.8.2015 passed by the District Judge,Shrirampur, in Regular Civil Appeal No. 5 of 2009 thereby upholding thejudgment and decree dated 25.11.2008, passed by Civil Judge (J.D.),Shrirampur in RCS No. 237 of 2006.2.Respondent No.1/original plaintiff instituted R.C.S. No. 237of 2006 seeking relief of mandatory and perpetual injunction againstdefendants. It was her contention that she is owner of Gram PanchayatHouse No. 118, purchased under registered sale deed dated 17.4.1997from the Panch Committee. It is abutting to Belapur-Kolar District RoadNo.34. Defendant Nos. 3 to 5 installed Tapris by side of public road infront of plaintiff’s house un-authorizedly and defeated right of frontageof plaintiff. Defendant No.2 – PWD had issued notice to defendant Nos.3 to 5 for removal of unauthorized Tapris, however, due to politicalreasons, they failed to take further action. Plaintiff explained that shehad also filed RCS No. 85 of 1999, 88 of 1999 and 91 of 1999 before the {3} SA 745.15.odtCivil Judge (Junior Division) Shrirampur against defendant Nos. 3 to 5for removal of encroachment. However, since encroachment is on publicroad, her suits were dismissed. Plaintiff states that on 9.8.2006 plaintiffissued notice under Section 80 of CPC to defendant Nos. 1 and 2 andrequested them to remove the encroachment. Defendant No.1 Collector,Ahmednagar also informed plaintiff that defendant No.2 will takeappropriate steps, but no action is taken. Consequently, she filed presentsuit.Defendants filed written statement and refuted the claim ofplaintiff mainly on the ground that plaintiff’s previous suits filed againstdefendant Nos. 3 to 5 have been dismissed on merit. As such, presentsuit is barred by principle of Res-judicata. Similarly, there would be barof Order 2 Rule 2 of CPC. The learned Appellate Court framed points fordetermination, recorded evidence of parties and after evaluation ofmaterial on record, decreed the suit directing defendant Nos. 1 and 2 toremove the encroachment made by defendants Nos.3 to 5 in RCA No. 5of 2009, thereby dismissing the appeal vide judgment and order dated13.8.2015. Hence, the second appeal.3.Mr. R.A. Tambe, learned advocate for appellants wouldsubmit that plaintiff had instituted previous suits against defendant Nos.3 to 5 for similar relief in respect of same subject matter. Those suitscame to be dismissed on merit. The decrees attained finality. Therefore,present suit filed with cosmetic changes like introduction of defendantNos. 1 and 2 would be barred by principle of res-judicata. Similarly, barunder Order 2 Rule 2 of CPC would operate, however, these aspects arenot given consideration by both courts. He would further submit thateven otherwise, present suit is barred by limitation. Plaintiff was aware {4} SA 745.15.odtabout the encroachment of defendants even prior to purchase of houseand admitted so, during the course of evidence. Therefore, suit institutedin the year 2006 is hopelessly barred by limitation. According to Mr.Tambe, all the aforesaid legal aspects constitute subtantial questions oflaw qua parties and appeal needs to be admitted. In support of hiscontentions, he relies upon the judgment of the Supreme Court of Indiain the case of Virgo Industries (Engineering) Private Limited vs.Venturetech Solutions Pvt. Ltd. reported in (2013) 1 SCC 625.4.Per contra, Mr. Karpe, learned advocate for respondent No.1submits that both the suits are based on independent cause of action. Inprevious suits, plaintiff contended that defendants have encroached uponportion of property owned by her, however, during trial of that suit it wascrystallized that encroachment of defendants was on public property.Eventually, plaintiff’s claim for removal of encroachment was rejected.Present suit is filed based on subsequent cause of action, when defendantNos. 1 and 2 i.e. statutory authorities failed to discharge their statutoryfunction of removal of encroachment although they were noticed forsame by plaintiff. In this background, neither bar under Section 11 norunder Order 2 Rule 2 of CPC would attract. According to him, in presentsuit, plaintiff has sought relief of mandatory injunction against publicauthorities. Cause of action for such claim arose when finding wasrecorded in previous suits that defendants have raised construction onpublic road. In that view of the matter, he submits that no substantialquestion of law arises for consideration in present appeal and same isliable to be dismissed.5.Mr. Tambe, learned advocate for appellant took this Courtthrough the judgment and orders delivered in previous suits instituted by {5} SA 745.15.odtplaintiff against defendant Nos. 3 to 5. Perusal of the pleading in thosesuits show that plaintiff purchased house property under registered saledeed dated 17.4.1997 in the month of December, 1998. At relevant time,PWD had issued notices to the defendant Nos. 3 to 5 for removal ofencroachment of their Tapris. At this juncture, they attempted to shifttheir Tapris over land belonging to plaintiff and to certain extent, theysucceeded in their attempt. Therefore, plaintiff instituted suits forperpetual and mandatory injunction. In those suits, an issue was framed,whether plaintiff proves that defendant has committed encroachmentupon open space of suit house, as specified in plaint. The trial court heldthat construction of Tapris/shops of defendants are in existence sincebefore purchase of suit house by plaintiff and it is on part of public road;eventually suit was dismissed.6.Perusal of pleadings in present suit would show that plaintiffhas specifically asserted that after dismissal of previous suits, defendantNos. 1 and 2, due to political pressure failed to take steps for removal ofencroachment. On or about 19.8.2006, defendant Nos. 3 to 5,unauthorizedly caused excavation of channel and closed down access ofplaintiff to the road. In the result, there was accumulation of water whichendangered construction of plaintiff’s house. Plaintiff is unable tomeaningfully use the house property. Plaintiff, therefore, issued noticedated 9.10.2006 under Section 80 of CPC, requesting them to removethe encroachment of defendant Nos. 3 to 5 within a period of twomonths, however, they failed to take further action. Hence, plaintiff filedsuit.7.If the cause of action as pleaded in previous suits andpresent suit are compared, it is altogether different. In previous suits, {6} SA 745.15.odtplaintiff asserted encroachment by defendant Nos. 3 to 5 on her ownproperty and sought removal, however, in present suit, plaintiff isseeking mandatory injunction against defendant Nos. 1 and 2, who arestatutory authorities, to remove encroachment on public road, which iscreating obstacle in use of frontage of her house property. Although thesubject matter of both the suits is one and the same, the nature of reliefand cause of action is incomparable. The bar under Order 2 Rule 2 ofCPC applies only when the cause of action and parties involved on boththe suits are same and relief claimed in specific suit could have beenclaimed in previous suit itself, but had been omitted. Only then, wouldsubsequent suit be barred under Rule 2 of Order 2. For that purpose, thecourts are required to examine pleading in both the suits and identifycause of action. Only when the cause of action on which two suits arebased appears to be same and parties were also same, the subsequentsuit can be treated as barred under Rule 2 of Order 2.8.The Supreme Court of India, in the matter of Coffee Boardvs. Ramesh Exports reported in (2014) 6 Scc 424, observed in para. 12,thus :-“The Courts in order to determine whether a suit is barred by Order2 Rule 2 must examine the cause of action pleaded by the plaintiffin his plaints filed in the relevant suits (See: S. Nazeer Ahmed v.State Bank of Mysore & Ors.). Considering the technicality of theplea of Order 2 Rule 2, both the plaints must be read as a whole toidentify the cause of action, which is necessary to establish a claimor necessary for the plaintiff to prove if traversed. Therefore, afteridentifying the cause of action if it is found that the cause of actionpleaded in both the suits is identical and the relief claimed in thesubsequent suit could have been pleaded in the earlier suit, then thesubsequent suit is barred by Order 2 Rule 2.”9.Considering aforesaid analogy and comparative analysis ofthe pleadings in both suits, it is difficult to hold that bar under Order 2Rule 2 would apply. Pertinently, there is no specific defence in written {7} SA 745.15.odtstatement as regards to the bar under Order 2 Rule 2 of CPC. Under suchcircumstances, contention of appellant that suit is barred by Order 2 Rule2 cannot be accepted.10.Although Mr. Tambe relies upon the judgment in case ofVirgo Industries Ltd. (supra), he may not get any assistance, sincesimilarity of cause of action and similarity of parties to the dispute, is thetest for application of Order 2 Rule 2 of CPC. In present case, evidently,nature of relief claimed and cause of action in both the suits is totallydifferent. In present suit, plaintiff sought decree of mandatory injunctionagainst public authorities for removal of encroachment. In earlier suit,they were not parties and even the basis of claim of plaintiff, wasaltogether different.11.The next contention raised on behalf of appellant is that, suitis barred by principle of res-judicata. However, as discussed above, theissues involved in present suit are totally different than those which wereagitated in earlier proceeding. In present case, main relief is soughtagainst public authorities, who were not parties in previous suit. Inearlier suits, finding is recorded that plaintiff failed to proveencroachment by defendant Nos. 3 to 5 on her property. In present suit,plaintiff is coming with admission or rather she is relying upon findingrecorded in previous suit, to contend that defendant Nos. 3 to 5 haveencroached upon public property, however, such encroachment iscreating nuisance to her. Therefore, sought relief against publicauthorities to remove such encroachment. In this background, the barcontemplated under Section 11 of CPC would not attract.12.Mr. Tambe endeavours to contend that suit is barred by {8} SA 745.15.odtlimitation. He tries to impress upon the court that plaintiff hadknowledge about such encroachment even since before purchase ofproperty. Therefore, she could have raised claim within 3 years of gettingsuch knowledge or atleast within 3 years from the date of purchasingproperty. Apparently, plaintiff has come with the case that defendants’encroachment on public property is confirmed after dismissal of suit.Thereafter, she persuaded public authorities for removal of encroachmentand lastly gave notice under Section 80 of CPC. In this background, barof limitation cannot be attracted. Learned District has elaborately dealtwith aforesaid aspect in para. 13 of its judgment.13.Appellate court rightly observed that plaintiff cannot be saidto have a right to sue against defendant Nos. 1 and 2 unless notice underSection 80 of CPC is served. In present case such notice was servedupon them on 9.10.2006 and suit was instituted on 22.12.2006.Therefore, the suit is held to be within limitation.14.No fault can be found in the approach of the courts below.No substantial question of law arises for consideration in this appeal.Hence, second appeal stands dismissed. Pending civil application standsdisposed of.[S.G. CHAPALGAONKAR, J] grt/-