SAO No.21 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH SAO No.21 of 2009 Date of Decision: 06.05.2011 Suresh Chand & Ors. ...Appellants Vs. Shanta Juneja & Ors. ...Respondents CORAM Hon'ble Mr. Justice Hemant Gupta, Present: Mr.C.B.Goel, Advocate, for the appellants. Mr.Amit Jain, Advocate, for the respondents. --- Hemant Gupta, J . (Oral) The defendants are in appeal aggrieved against an order passed by the learned lower appellate court on 7.3.2009, whereby an order passed by the learned trial court rejecting plaint under Order 7 Rule 11 of the Code of Civil Procedure was set aside and trial court was directed to decide the suit on merits in accordance with law. Earlier the present appellants filed a suit for permanent injunction to protect their possession as a lessee of the land in dispute. The said suit was decreed on 6.4.1980. Such decree has since been affirmed and has attained finality with the dismissal of SAO No.21 of 2009 2 RSA No.223 of 1999 on 12.12.2000. Thereafter the present respondents filed a suit for permanent injunction wherein, in para No.5 it is recited therein that the present appellants have been held to be lessee in possession of the agricultural land detailed and described in para No.1 of the plaint in earlier suit filed by the said defendants, whereas now the said defendants are wrongly and illegally are bent upon to change the nature of the suit. Para No.6 of the plaint reads as under: “6. That defendants No.1 to 8 now wrongly and illegally are bent upon to change the nature of the suit land and to raise constructions over the same of which they have no right to do so. Defendants No.1 to 8 have have started to collect building material near the suit property and they are bent upon to raise unauthorised and illegal constructions over the suit property,l as the defendants No.1 to 8 are strong headed and resourceful persons and they have openly stated to the plaintiffs that they will effect the constructions in all circumstances. As per terms of the lease deed defendants No.1 to 8 have no right to raise any constructions over the suit land and they have also no right to change the nature of suit land, which is agriculture in nature and alleged lease deed were executed only for agricultural purposes and hence in case defendants No.1 to 8 are succeeding in their illegal acts in raising unauthorised and illegal constructions contrary to the terms and conditions to the lease deed, in that case, plaintiffs will suffer irreparable loss and injury, which cannot be compensated in any manner.” Learned trial court passed an order on 3.3.2008 holding that the suit is barred by the principles of res judicata as the plaintiffs could have taken such plea in the previous suit. However, learned SAO No.21 of 2009 3 first appellate court found that cause of action in both the suits is separate and distinct. Cause of action in the preset suit is not in respect of possession but in respect of change of nature of agricultural land and such issue cannot be said to have arisen in the previous suit and that plea of res judicata is not available. It is well settled that for determining whether plaint discloses cause of action or not, the averments made in the plaint alone are required to be examined. From the averments made in the plaint it transpires that the plaintiffs have admitted the decree in respect of possession of the agricultural land. The plaintiffs further assert that as a lessee the defendants have no right to raise construction which is prohibited in terms of the lease deed. Such fact requires adjudication. There was no dispute in the previous suit as to whether the plaintiffs/present appellants have raised construction or have a right to raise construction. In the said suit issue No.8-D was framed to the effect:- “ Whether the defendants have developed the suit land, carved residential plots over it and have hanged the nature and character of the suit land by raising construction, if so, to what effect?OPD” Learned trial court on issue No.8-D has returned finding that the defendants (the present plaintiffs) have failed to prove that the constructions have been raised on the suit land. After returning such finding learned trial court restrained the defendants from raising any construction thereon except in due course of law. SAO No.21 of 2009 4 In the previous suit the question was whether the defendants (now plaintiffs) have raised construction. The question in the present suit is whether the defendants (present appellants) have a right to raise construction in terms of the lease deed. Such question was neither directly or substantially was arising in the previous suit. In the absence of issue of right of construction by the present appellants raised, it could not be said that the question is barred in the present suit on the basis of principles of constructive res judicata. Dismissed. (Hemant Gupta) 06.05.2011 Judge rp