Civil Revision Application No.1108 of 2002

13th February, 2007

Petitioner Counsel: C. A. JOSHI
Respondent Counsel: V. P. PANPALIA

Cases Cited:
Ms. Vora Automotives Vs. Gopalrao Pohre, AIR 1993 Bom. 151 [Para 2,3,6]
Fatima Caetano Joao Vs. Village Panchayat of Merces, 2000(3) Mah.L.J. 624 [Para 3]
SNP Shipping Services Pvt. Ltd. Vs. Kara Mara Shipping Co. Ltd., 2001(2) ALL MR 403=2000(1) Mah.L.J. 699 [Para 8]

JUDGMENT

JUDGMENT :- The applicant/defendant, whose application for dismissal of suit on preliminary ground was rejected, has come in revision.

2. The facts giving rise to this revision are as under :-

Initially the plaintiffs/non-applicants had instituted a Civil Suit No.634 of 1992, alleging that defendant No.1 is making construction of a building on the adjoining plot and the said construction is in contravention of the provisions of the Municipal Law. It is contended that even though the plaintiff objected to the said construction, the defendant did not pay any heed. It is further contended that after filing of the suit also the defendant continued to carry out the said construction and, therefore, the plaintiff seeks injunction. In that suit, an application was filed contending that the Court did not have jurisdiction to entertain the suit. The suit was, therefore, dismissed in view of the decision reported in AIR 1993 Bom. 151, Ms. Vora Automotives Vs. Gopalrao Pohre.

3. The plaintiff subsequently instituted present suit bearing No.711 of 2000. The plaintiff made same allegations as are made in the earlier suit but contended that the decision in AIR 1993 Bom. 151, M/s. Vora Automotive Ltd. Vs. Gopalrao Pohre, has been set aside in a case reported in 2000(3) Mah.L.J. 624, Fatima Vs. Village Panchayat of Merces. It is contended that the defendant has completed the construction but same is liable to be removed.

4. In this case too the defendant initially filed an application for dismissal of the suit but the said application came to be rejected and the defendant was directed to file written statement. Accordingly, defendant filed written statement. The defendant subsequently filed another application praying that the issue about maintainability of suit be framed as a preliminary issue and it be decided. This application too was rejected by the Court on 13-12-2002. It is against this order that this revision has been preferred.

5. I have heard the learned counsel for the applicant and the non-applicants.

6. Earlier Suit No.634 of 1992 was instituted for permanent injunction. The plaint therein is placed before me. The allegations in this suit were that on adjoining plot the defendant is making construction in contravention of the Municipal Law. The plaint in subsequent suit, in which the impugned order is passed, is also placed on record and in this suit prayer for mandatory injunction is made. It is clearly alleged that the building is completed and all flats are disposed of. In this suit, the plaintiff has alleged that the earlier Suit No.634 of 1992 was dismissed on the ground of bar of jurisdiction of the Civil Court. Such finding, it is alleged, was given on the basis of decision of this Court in AIR 1993 Bom. 151. The relevant paragraph in the plaint is reproduced here.

"But the same was dismissed on the ground of bar of jurisdiction of the Civil Court by relying on the judgment of Hon'ble High Court of Bombay reported in AIR 1993 Bom. 151, M/s. Vora Automotives Vs. Gopalrao Pohre. Now the judgment is reversed by Hon'ble High Court Bombay Division Bench reported in 2000(3) Mah.L.J. 624, Fatima Caetano Joao Vs. Village Panchayat, by holding construction contrary to building bye laws would be in violation of neighbours right to life thus the Civil Court has jurisdiction to maintain such suit. The illegal construction of defendant No.1 was continued cause of action."

7. Obviously, since the decision in Vora automotive case is set aside, the plaintiff has instituted the present suit. It was rightly contended by Shri. Joshi, learned counsel for the applicant, that even though the decision in Vora Automotive case is set aside and is no more a good law, the decision is final as far as the parties to the suit are concerned. If such a suit is allowed to be entertained simply because the law then prevalent is subsequently changed due to overruling, there would be flood of litigation. Once the decision in the suit has assumed finality on the basis of the law then prevalent, it cannot be reopened and for all purpose the dispute can be said to be finally heard and decided. It is also an established principle of law that the judgments are always prospective and never retrospective.

8. It was contended that this suit is based on different cause of action and my attention was invited to clause of cause of action in both the plaints. In former suit, dates of cause of action are given as 26-6-1992 and 21-8-1992 and in subsequent suit it is given as 30-12-1995. The dates are immaterial. The Court has to look into the material allegations on the basis of which cause of action is based. The material allegations or the grievance is the alleged illegal construction made by the defendant. Hence, subsequent suit is certainly based on the same cause of action. This Court in a case reported in 2000(1) Mah.L.J. 699 : [2001(2) ALL MR 403], SNP Shipping Services Pvt. Ltd. Vs. Kara Mara Shipping Co. Ltd., held as follows :

"Order 6, Rule 16, Civil Procedure Code empowers the court to strike out the pleading if it is an abuse of the process of the Court. Section 151 of the Code of Civil Procedure retains the inherent jurisdiction which every Court possess to strike out from its record a suit which is frivolous, vexatious, malicious or tantamount to abuse of the process of the Court or tends to bring the administration of justice to ridicule by persistently and consistently filing proceedings and suits though the matter has been settled finally by the highest Court of the land. Such power of striking of the plaint from the record of the Court on the ground of abuse of process is to be exercised sparingly and with circumspection and in rarest of rare cases but when the conduct of a litigant is so glaringly contumacious intended to keep a matter alive in a Court having no jurisdiction, such litigation deserves to be dealt with sternly. Re-litigation is one of the examples of an abuse of the process of the Court and a party if advised to reagitate the same issue which has already been decided earlier against him, it is contrary to justice and public policy and is therefore an abuse of process of Court. It is an abuse of the process of the Court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from wasted."

To my mind also the present suit certainly is an abuse of the process of the law. In view of what has been laid down in the case of SNP Shipping this suit is certainly not maintainable. I do not deem it necessary to deal with any other argument by either party. The revision application, therefore, has to be allowed and the suit dismissed.

The non-applicants shall pay costs of the revision as well as the suit. Order accordingly.

Revision allowed.