State Of U.P. & Anr vs Jagdish Saran Agrawal & Ors

3. The stand of the State before the High Court was that the disputed land which is a Nazul property is owned by the State and is under the management of the Board. Nagar Palika has filed the Original Suit No.25 of 1960 in the court of Munsif for permanent injunction against Savai Mahendra Maharaja Sri Devendra Singh Joodev for restraining him from auctioning the land being the property of the State. The said suit filed by 2 the Nagar Palika was dismissed. The High Court noted that the judgment of the Trial Court was not brought on record and it was also not stated as to whether any appeal against the said judgment was filed or not. Thereafter, State of Uttar Pradesh initiated proceedings against the Maharaja under the Eviction Act which was numbered as DES Case No.521 of 1970 before the prescribed authority.

4. During the pendency of the proceedings, the aforesaid Act was declared ultra vires by this court and as a result thereof the State of Uttar Pradesh made necessary amendments and proceeded with the case after taking steps under the provisions of the Act and the case was re-numbered as Case No.521-353. Proceedings were dismissed for default by the Prescribed Authority by order dated 26th November, 1976. An application to recall the said order was filed which was dismissed for default on 3rd January, 1977 by the Prescribed Authority. Thereafter the State initiated proceedings under the Act which was numbered as Case No.1/1988-89. Before the Prescribed Authority preliminary objection was raised on behalf of the alleged occupants contending that the proceedings were barred by the principles of resjudicata as well as on the principles of Order IX Rule 9 of the Code of Civil Procedure, 1908 (in short the `CPC') and consequently the 3 case cannot be proceeded with. The Prescribed Authority by Order dated 14th January, 1992 rejected the aforesaid objections and held that the orders passed in the Case No.521 of 1970 and 25 of 1960 do not operate as resjudicata.

5. Against the said order, Jagdish Sharan Agrawal and others approached the High Court by a Writ Petition which was dismissed by order Dated 18th February, 1992 on the ground that the alternative remedy was available. Appeal No.23 of 1992 before the District Judge, Lalitpur, was filed under Section 9 of the Act. District Judge held that the proceedings initiated by the State under Case No.1 of 1988-89 was barred by the principles of res judicata in view of the earlier orders passed in Suit No. 25 of 1960 and 521 of 1970. The present appellants took the stand that the judgment in question does not operate as resjudicata between the parties in as much as in the said suit filed by the Nagar Palika, State of Uttar Pradesh was not a party. The State being the owner of the land and the land being only under the management of Nagar Palika, in view of paragraph 47 of the Nazool Manual, any proceeding initiated by the Nagar Palika to which the State of Uttar Pradesh is not a party cannot be said to be binding on the State.

15. Therefore Order IX Rule 9 can not be said to be applicable. The dismissal of the suit for non-prosecution was not a decision on merit. Consequently, the said order cannot operate as Resjudicata. 11

16. Above being the position the High Court's order is clearly unsustainable and is set aside. The matter is remitted to the District Judge, Lalitpur to decide the proceeding on merit. Appeals are allowed but without any order as to costs.

.............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, November 25, 2008 12