Smt. Shashi Bajpai & Anr. v. Ram Shankar Shukla And 4 Others

The plaintiff/appellants have filed suit for permanent prohibitory injunction against the defendants/respondents restraining them not to interfere and encroach upon the suit property shown by letters A B C D at the foot of the plaint. Learned trial Court has decreed the suit. However, first Appellate Court has reversed the judgement passed by the trial court, the appeal having been filed on behalf of the defendants.

The instant second appeal has been preferred on behalf of the plaintiff who is claiming his right and title over the property in question on the basis of the registered sale deed dated 29.11.1994. Title and possession of the plaintiff through sale deed dated 29.11.1994 acknowledged by both the Courts below. However, Appellate Court has reversed the judgement passed by the trial Court considering the fact that suit is barred under Order IX Rule IX CPC, while deciding the point for determination No.1.

It is submitted that learned Appellate Court has given perverse finding with respect to the bar under Order IX Rule IX CPC inasmuch as cause of action of the previous Suit No.323 of 2003 was different than the cause of action in the present Suit No.25 of 2008. It is next submitted that pleading of plaint should be read as whole for the purposes to draw the intention of the plaintiff. Mere partial pleading or prayer in isolation cannot be considered for this purpose.

The appeal is admitted on the following substantial question of law:- "Whether subsequent Suit No.25 of 2008 is barred under Order IX Rule IX CPC owing to the dismissal of the previous Suit No.323 of 2003 for want of prosecution and finding returned by the first Appellate Court in this respect is perverse and the result of misleading and miss- interpreting the evidence on record?"

Let the record of the Court below be summoned and notices be issued to the respondent Nos.2 to 5 fixing 28.8.2025 as the date.

Respondent No.1 is already represented through counsel. Order on Stay Application

Issue notices to respondents, as observed above.

List on 28.8.2025. In the meantime, both the parties shall exchange their respective affidavits.

Till the next date of listing, effect and operation of the judgment dated 05.02.2025 passed by appellate court in Civil Appeal No.70 of 2023 shall remain stayed. Order Date :- 22.5.2025/Sachin