# Rekha and another v. The Additional Chief Judicial Magistrate and others

- **Citation:** (2002) 3 ILRA 744
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-23
- **Case number:** Civil Misc. Writ Petition No. 1093 of 1992
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rekha-and-another-v-the-additional-chief-judicial-magistrate-and-others-39960
- **Pages:** 3

## Headnote

Code of Civil Procedure Section-11-
Principle of Resjudicata- whether is
applicable in Misc. Proceedings? held-
'Yes' to give the finality of litigation-
earlier application to lead additional
evidence- rejected validity challenged
through writ petition- During pendency
of the writ petition- on fresh application-
order to give additional evidence cannot
be passed.

Held- Para 6

Even though Section 11 of the Code of
Procedure may not strictly apply to the
present case, the subsequent application
filed would certainly be barred by the
general principle of res judicata. Once
having decided a particular matter in one
way at an earlier stage, the courts
should not allow the party to reagitate
the matter at a subsequent stage of the
same proceedings, especially when there
was no change in circumstances so as to
entail modification or change in the
earlier
view
taken.
Finality
to
a
proceedings have to be given at some
stage. If a litigant is permitted to keep re
agitating the same matter again and
again, no finality to the proceedings can
ever be given. The general principles of
res judicata are broad enough to apply to
miscellaneous proceedings and orders
passed at different stages of the same
litigation.

## Text

http://www.allahabadhighcourt.nic.in
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.9.2002

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 1093 of 1992

Rekha and another
 ...Petitioners
Versus
The Additional Chief Judicial Magistrate
and others

 ...Respondents

Counsel for the Petitioners:
Sri R.S. Misra
Sri Arun Kumar

Counsel for the Respondents:
Sri Shashi Nandan
Sri A.C. Pandey
S.C.

Code of Civil Procedure Section-11-
Principle of Resjudicata- whether is
applicable in Misc. Proceedings? held-
'Yes' to give the finality of litigation-
earlier application to lead additional
evidence- rejected validity challenged
through writ petition- During pendency
of the writ petition- on fresh application-
order to give additional evidence cannot
be passed.

Held- Para 6

Even though Section 11 of the Code of
Procedure may not strictly apply to the
present case, the subsequent application
filed would certainly be barred by the
general principle of res judicata. Once
having decided a particular matter in one
way at an earlier stage, the courts
should not allow the party to reagitate
the matter at a subsequent stage of the
same proceedings, especially when there
was no change in circumstances so as to
entail modification or change in the
earlier
view
taken.
Finality
to
a
proceedings have to be given at some
stage. If a litigant is permitted to keep re
agitating the same matter again and
again, no finality to the proceedings can
ever be given. The general principles of
res judicata are broad enough to apply to
miscellaneous proceedings and orders
passed at different stages of the same
litigation.

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioners had filed a Suit
No. 944 of 1986 in the court of Munsif,
Deoria, praying for cancellation of the
sale deed dated 7.8.1984 executed by
respondent no. 3, Bhagwat and for
permanent
injunction
restraining
the
respondents no. 2 and 3 from interfering
with the petitioners' possession over the
disputed plot. The respondents contested
the suit and vide judgement dated
23.9.1988, the suit of the petitioners was
decreed. Respondents no. 2 and 3 filed
Civil Appeal No. 208 of 1988 challenging
the aforesaid judgement of the Munsif.
During the pendency of the appeal, the
respondents no. 2 and 3 filed an
application for amendment of their
written
statement.
By
order
dated
22.8.1990,
while
allowing
the
amendment, the lower appellate court
made it clear that the amendment of the
written statement would not entitle the
parties to lead fresh evidence. However,
on 28.1.1991, an application for leading
fresh evidence was filed by respondents
no. 2 and 3. The lower appellate court,
after hearing the parties, rejected the said
application
on
5.2.1991.
The
said
respondents
filed
Civil
Misc.
Writ
Petition No. 9467 of 1991 challenging the
aforesaid order dated 5.2.1991.

2. During the pendency of the
aforesaid
said
writ
petition,
the
respondents no. 2 and 3 filed a second
application with the same prayer for filing
http://www.allahabadhighcourt.nic.in
3 All] Rekha and another V. The A.C.J.M. and others
745
fresh evidence. After inviting objections
and hearing the counsel for the parties, the
lower appellate court, on 14.10.1991,
allowed the subsequent application for
adducing fresh
evidence. This writ
petition has been filed challenging the
aforesaid order of the lower appellate
court.

3. I have heard Sri Arun Kumar
holding brief of Sri R.S. Misra, learned
counsel for the petitioners, as well as Sri
A.C. Pandey holding brief of Sri Shashi
Nandan,
learned
counsel
for
the
contesting respondents no. 2 and 3.

4. The contention of the learned
counsel for the petitioners is that the
amendment application was allowed by
the lower appellate court on 22.8.1990
wherein it was specifically stated that
because of the amendment, the parties
would not be entitled to lead fresh
evidence. It was thus urged that the
contesting
respondents
could
not
thereafter be permitted to lead fresh
evidence, as the aforesaid order had not
been even challenged by them. Learned
counsel further submitted that since such
a condition not permitting any fresh
evidence had already been imposed, they
did not consider it necessary to challenge
the
order
allowing
the
amendment
application. It was also submitted that
since the first application had been
rejected by the lower appellate court on
5.2.1991, the second application with the
same prayer would be barred by general
principle of res judicata, which would
apply to miscellaneous proceedings and
orders passed at different stages of the
same litigation. In support of this
contention,
learned
counsel for the
petitioners relied on two decisions of the
Apex Court rendered in Satyadhyan
Ghosal Vs. Smt. Deorajin Debi (A.I.R.
1960 Supreme Court 941); and Prahlad
Singh Vs. Col. Sukhdev Singh (A.I.R.
1987 Supreme Court 1145) as well as a
Division Bench of this court in Hukum
Singh Vs. Prescribed Authority (1980
A.W.C. 639). It was lastly contended that
even otherwise there were no sufficient
grounds for permitting respondents no. 2
and 3 to lead fresh evidence as required
under order 41 rule 27 C.P.C.

5. Sri A.C. Pandey, learned counsel
appearing for respondents no. 2 and 3, has
submitted that as the amendment had been
allowed and a fresh issue was also
framed, it was necessary in the interest of
justice that the answering respondents be
permitted to lead fresh evidence. He
further submitted that considering it to be
in the interest of justice, the second
application for leading the fresh evidence
was entertained and allowed by the lower
appellate court only after hearing the
counsel for the parties. It was urged that
the subsequent application would not be
barred by the general principle of res
judicata.

6. Having considered the submission
of the learned counsel for the parties and
on perusal of the record, I find that while
allowing the amendment application of
respondents no. 2 and 3, the lower
appellate court had mentioned that no
fresh evidence would be led by the
parties. Despite that, the contesting
respondents filed an application, which
was rejected on 5.2.1991. Even though
Section 11 of the Code of Civil Procedure
may not strictly apply to the present case,
the subsequent application filed would
certainly be barred by the general
principle of res judicata. Once having
decided a particular matter in one way at
http://www.allahabadhighcourt.nic.in
746 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
an earlier stage, the courts should not
allow the party to re-agitate the matter at a
subsequent stage of the same proceedings,
especially when there was no change in
circumstances so as to entail modification
or change in the earlier view taken.
Finality to a proceedings have to be given
at some stage. If a litigant is permitted to
keep re-agitating the same matter again
and again, no finality to the proceedings
can ever be given. The general principles
of res judicata are broad enough to apply
to miscellaneous proceedings and orders
passed at different stages of the same
litigation.

7. Thus, in my opinion, the order
dated 14.10.1991 passed by the lower
appellate court allowing the application of
respondents no. 2 and 3 for leading
additional evidence is liable to be set
aside.

8. In the result, the writ petition is
allowed and the impugned order dated
14.10.1991 is quashed. However, there
shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.9.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Habeas Corpus Petition No.
16503 of 2002

Shaukat Ali

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri M.M. Khan
Sri Nasiruzzaman

Counsel for the Respondents:
Sri Ajit Kumar Singh, Addl. S.C.
Sri D.P. Srivastava
A.G.A.

Constitution
of
India,
Article
226-
Detention
Order-
validity
challenged
allegation slaughtering cows and calfsknife and Rod-recovered- court will not
permit
to disturb communal amity-
another Gujrat- No delay in deciding the
representation- petition dismissed.

Held- Para 2

Communal
amity
and
harmony
are
absolutely essential for the progress of
the nation. We cannot afford to have
another Gujrat in U.P. Slaughter of cow
hurts the sentiments of the Hindus and
hence should not be committed. In our
opinion cow slaughter affects public
order because it is likely to incite
communal tension. Hence it is not
merely a case of law and order. We are
also of the opinion that there was no
delay
in
deciding
the
petitioner's
representation. There is no merit in this
petition. The writ petition is dismissed.

(Delivered by Hon'ble M. Katju, J.)

1. The petitioner is challenging the
detention order dated 3.1.2002 Annexure
1 to the petitioner under N.S.A. A perusal
of the grounds of detention copy of which
is Annexure 2, shows that the allegations
against
the
petitioner
are
that the
petitioner had slaughtered a cow and the
knife and rods were recovered from him.
This incident caused communal tension
and hence the impugned detention order
was passed.

2. Communal amity and harmony
are absolutely essential for the progress of
the nation. We cannot afford to have
another Gujrat in U.P. Slaughter of cow
hurts the sentiments of the Hindus and