Orissa High Court
Sk. Issac vs Jalikha Bibi & Others on 20 November, 2014
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA, CUTTACK
R.F.A. No. 127 OF 2004
From the judgment and decree dated 15.05.2004 and 23.06.2004
respectively passed by Shri S.N.Sahu, learned Ist Additional Civil Judge
(Senior Division), Cuttack in T.S. No. 100 of 1995.
.........
Sk. Issac ......... Appellant
Versus.
Jalikha Bibi & others ......... Respondents
For Appellant : M/s. R.K.Rath, Nihar Rout,
Sudhansu Acharya, advocates.
For Respondents : M/s. Rajat Mitra, P.K.Mishra,
Kalpataru Mishra, P. K. Mohapatra,
D.K.Panda, Pradip Kumar Rout,advs.
.........
PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
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Date of hearing : 10.11.2014 : Date of judgment: 20.11.2014
The unsuccessful defendant No. 1 in this appeal has
challenged the judgment and decree passed by the learned Civil Judge
(Senior Division), Cuttack in Title Suit No. 100 of 1995 decreeing the
suit of the plaintiff-respondent No. 1 preliminarily allotting to
Ac.0.038 decimals of land to her firm out of the suit land better
described in the schedule of the plaint.
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2. For the sake of convenience, clarity and in order to avoid
confusion, the parties hereinafter have been referred to as they have
been arrayed in the court below.
Plaintiff's case is that one Sk. Kangu is the common
ancestor of the parties; Rasulan was his wife. They had six issues;
three sons and three daughters. The sons are namely, Sk. Mustak,
Sk. Issac (defendant no. 1) and Sk. Sahajaan, the daughters are
Hasina, Hafian Biwi and Jalekha Biwi (plaintiff). Hafian pre-deceased
Kangu; Sahajaan died as a bachelor. One Sutan Khan who came from
State of Andhra Pradesh to Cuttack in search of employment was
taken by Kangu to his house and Jalekha was given in marriage with
him. Since then Sultan remained in the house with Jalekha and
children. Kangu and Rasulan died leaving behind Hasina the plaintiff,
Sk. Mustak, Sk. Issac; the defendant no. 1 and Sk. Sahajaan who
died as a bachelor. That out of suit property, Sk. Mustak and Issac,
the defendant No. 1 are entitled to 2/6th share each whereas Jalekha,
the plaintiff and Hasina each are entitled to 1/6th share. The suit
property described in schedule- A of the plaint comprises of house
and homestead. It is stated that there was no partition of the said
property in metes and bounds though the parties were leaving
separately. It is further stated that Sk. Mustak and plaintiff were
leaving together under one compound whereas Sk. Issac and Hasina
were living separately on the other part as per their connivance. Sk.
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Mustak was staying at Puri for quite a long period being in service
and came to Cuttack 10 years prior to the suit, when he suffered from
illness and thereafter continued to live with the plaintiff who used to
take all his care and was looking after during his prolonged illness by
giving the treatment etc. So, in consideration of the love and affection
and service rendered Sk. Mustak who was a bachelor voluntarily
gifted way his undivided interest in the property to the extent of Ac.
0.025 decimals to the plaintiff. It was an oral gift in presence of local
gentlemen and the plaintiff, followed by the delivery of possession of
the portion adjoining the portion already allotted to the plaintiff. Thus,
the plaintiff claims to have been possession of Ac. 0.038 decimals of
land from out of total suit land as it is absolute owner. It is her
further case that suit land situates towards the north. It is pleaded
that the oral gift was made on 10.01.1985 and was subsequently
acknowledged by the said Sk. Mustak, the donor by letter of
assurance dated 21.04.1985 followed by deed of acknowledgement of
gift (Hiba) on 28.03.1985. The plaintiff's further case is that on the
basis of said gift and possession in pursuant to the same, she with
her land already in possession raised a boundary wall over the land
comprising Ac. 0.038 decimals of land, when the rest remained with
the defendants on the southern side. The defendant no. 1 then in
police service and knowing fully well about all these, began to harass
the plaintiff by instituting criminal case and also by instituting a
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proceeding under the Odisha House Rent Control Act against the
husband of the plaintiff. The local gentlemen and others made an
attempt of amicably settlement of the dispute which was avoided by
the defendant No. 1 by declining to sign on it. It is stated that the
plaintiff's signature was taken in a surreptions manner without
making her known as regards the contents of the same. Further the
dispute thus remained unsettled. The plaintiff then filed a suit which
was dismissed when the assurance came from the side of the
defendant No. 1 and the local gentlemen that the matter would be
amicably settled. As it did not happen, the plaintiff advanced her
demand for partition amicably and that being not paid any heed to,
she was compelled to file the suit.
3. The defendant No. 1 filed a separate written statement
whereas defendant No. 2 to 5 jointly filed their written statement.
Defendant No. 1 attacked the suit's maintainability and
that to be bad in law due to filing of a prior suit No. 224 of 1994 in the
court of Civil Judge (Jr. Division),1st Court, Cuttack and the present
suit's filing during its pendency. It is his case that Sultan Khan was
permitted by plaintiff's father to remain in a room as a monthly tenant
and he continued to stay there after marriage with the plaintiff on
payment of monthly rent. It has been admitted that due to dispute
between him and the plaintiff, there was a decision in the Panchayat
on 10.02.1988 with the consent of the parties as per the said
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decision. The plaintiff's entitlement was settled at Ac. 0.013 decimals.
Thereafter, defendant no. 2 to 5, the children of Hasina Biwi agreed to
sale their share of Ac. 0.013 decimals to defendant No. 1. So, there
was an agreement to that effect fixing the sale price and handing over
the possession of the suit land to the defendant No. 1. It is further
stated that Sk. Mustak died in the house of defendant No. 1 and there
was never any oral gift (Hibba) by him as pleaded in respect of Ac.0.25
decimals of land. It is asserted that defendant No. 2 is in possession
of Sk. Mustak land of Ac. 0.025 decimals. The theory of gift as
projected by the plaintiff has been said to completely false and the
documents in that regard is attacked as to have been fraudulently
created. The factum of possession pleaded by the plaintiff by raising
boundary wall etc. is also denied. With all these, the defendant No. 1
prayed to non-suit the plaintiff in respect of specific prayer claiming
Ac. 0.038 decimals of land for being allotted to her.
4. The defendant no. 2 to 5 in their written statement have
also denied the factum of deed by Sk. Mustak in favour of the plaintiff
at any time. They stated that the defendant No. 1 had been in
possession of Ac. 0.063 decimals of land out of which Ac.0.013
decimals of land has been given by them to the defendant No. 1 and
there was an agreement to that effect fixing the sale price followed by
delivery of possession which they have admitted in clear terms. It is
further stated that the defendant No. 1 has been residing over that
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land by raising pucca house and it is stated that the plaintiff is in
possession of Ac.0.13 decimals of land. Thus, on the whole they
support the case of the defendant No. 1.
5. On such rival pleading, the court below has framed
following issues:-
I S S U E S
(1) Is the suit maintainable?
(2) Has the plaintiff any cause of action to file the suit?
(3) Was the brother of the plaintiff orally gifted Ac.0.025 dec.
of land to the plaintiff?
(4) Has the mother of the defendants No. 2 to 5 executed an
agreement in favour of the defendant No. 1 to sell the
land measuring Ac.o.013 dec.?
(5) Is the plaintiff entitled to get Ac.o.038 dec. of land out of
the suit property?
(6) To what other relief, the plaintiff is entitled?
6. During trial, plaintiff examined six witnesses besides
proving the deed of acknowledgement of gift Ext. 1 and the
Panchayatnama Ext. 8. The defence in total have examined four
witnesses out of whom defendant No. 1 is D.W. 4. From their side one
Panchayat Faisalanama has been admitted in evidence and marked as
Ext. B and the copy of the plaint in earlier suit as Ext. C.
7. Learned counsel for the appellant without going to merit
of the competing claim as also on the sustainability of findings on
those submits to confine his submission on the point of
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maintainability of the suit that the plaintiff for the self-same property
had filed T.S. No. 224 of 1994 in the court of First Munsif, Cuttack (as
it then) on 02.12.1994, the plaint of which is the Ext. C and its order
sheet is Ext.F. When the said suit was pending, the present suit has
been instituted. Neither the first suit was withdrawn leading way to
file the second one nor in the second suit it was so disclosed. The first
suit got dismissed on 25.10.1995 even prior to the filing of the written
statement by the appellant. Referring to the evidence he contends that
this fact stands admitted by the plaintiff during her examination as
P.W. 5. He further submits that suppressing about filing and
pendency of the prior suit, in the present suit, the plaintiff has
claimed Ac.0.25 decimal of land more than the extent admitted
totalling to A0.38 decimals which was claimed in the earlier suit. He
contended that though in the court below in specific words such a
plea was not raised, nonetheless, the parties were well aware of it and
though issue was to be framed, it was not so clearly framed and the
trial court proceeded in a different way to consider the issue of
maintainability being barred by res-judicata. According to him its a
pure question of law and can be decided in this appeal.
7(a). Learned counsel for the appellant submits with reference
to the plaint averments, the evidence of plaintiff examined as P.W. No.
5, the relevant order-sheet Ext. F and also the copy of the plaint
marked during trial as Ext. C that suit for the present suit, provision
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of Order 23 (Rule 1(4) of the Code stands as a complete bar. It is his
next contention that legal bar as provided in Rule 1 and 2 of Order 2
of the Code also heavily stands on the way of present suit. In course
of his submission, he has also gone to press the provision of section
12 of the Code into service. The learned senior counsel has placed a
number of decisions of the Hon'ble Apex Court and other Courts
which will be discussed in the subsequent paragraphs as when the
necessity would arise. Simultaneously, he argues that this matter
touches the jurisdiction of the court as it creates a bar for the court to
entertain the suit and exercise its jurisdiction, and therefore, it can be
raised at any stage and this appeal being a continuation of original
proceeding, any objection if raised from other side in this regard
would not stand for consideration. It is next submitted that even if
the specific issue is not framed, when the pleading remains and the
parties knew all about these during trial, the same legal question has
to be considered and there can't be any objection to it as it can well be
taken up for decision under that umbrella issue of maintainability. It
is further submitted that simply because the counsel made a wrong
statement of law it is not binding upon claimant and it can be
considered under the proper provision of law if raised at the appellant
stage. In the similar line, he argued that accepting for a moment that
the parties in spite of the pleading evidence and their knowledge did
not raise the issue, in view of settled position of law that the consent
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of the parties cannot confer jurisdiction upon the court, the same has
to be considered when raised. He again submitted that it is a question
of suppression of the material fact by the plaintiff whose duty was to
approach the court with clean hands and thus the plaintiff having
practised fraud upon the Court in not placing all the details about the
prior suit between the parties for the same subject matter for the
knowledge of the Court for a just and proper decision, her position is
that of a fraud sticker and therefore, she having committed wrong
can't be allowed to take advantage of the same. With all the above
submissions, he urges for allowing the appeal by non-suiting the
plaintiff.
8. Learned counsel for the respondent no.1 in reply to the
above point submits that the earlier suit was filed for a cause of action
different from the one for which the present suit has been filed. He
further submits that the present suit in view of the dismissal of the
earlier suit in default is not barred under any of the provision of Code
as submitted by the learned counsel for the appellant. He next
contended that this having not been raised and decided at this
belated stage, it is not permissible to be raised and decided.
8(a). Learned counsel for the respondent no. 1 with above
contention has taken this Court through the detail of the pleading
Ext. C (plaint of the earlier suit) as also the averment of the plaint of
the present suit. He further submits that in view of the fact that for
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both the suits the cause of action are different, neither the bar
provided under Order 2 Rule 1 and 2 nor Order 23 Rule 1 and 2 of the
Code would stand and the provision Section 12 of the Code has no
applicability. It is next submitted that said pleading is not to be gone
into at this stage as no issue has been framed in this regard and the
trial court has not therefore gone to decide in that light as regards the
survival of the suit on that ground. It is his contention that if the
plaint averments are gone through by no stretch of imagination, it can
be said that the plaintiff is guilty of suppression of any material fact,
so the question of practising fraud upon the Court and taking
advantage of it does not arise. In summing up, he contends that the
suit will not be barred under Order 23 Rule 1 and 2 or under Order 2
Rule 1 and 2 or Section 12 of the Code because of the fact that both
the suits are separate with distinct cause of action.
In view of above rival submission, this court feel it proper
to first of all take up that exercise for consideration of the same as it
touches the root of the matter as regards the present suit's
maintainability.
9. It may be mentioned here that in the court below the
above point was not urged instead it was argued from the side of the
appellant that the suit being barred by law of res judicata which has
been negatived while answering issue no. 1 as regards the
maintainability. This is not questioned by the learned counsel for the
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appellant and he with all fairty contended that the court below has
rightly held that the suit is not barred by res judicata. However, he
contended that although it was not so argued, the court below ought
to have turned attention for a while to the point of maintainability in
view of dismissal of the prior suit which was known being brought out
in evidence with the plaint of the earlier suit before it as Ext. C.
10. At this stage, it may be stated that the appellant had filed
a petition under Order 41, Rule 17 of the Code of Civil Procedure
numbered as Misc. Case No. 257 of 2013 for admission of certified
copy of the order of dismissal passed in the earlier suit i.e., T.S. No.
224 of 1994 on the file of 1st Munsif, Cuttack (as it was then) as
additional evidence. This Court by order dated 12.08.2013 has
already allowed the same. Similarly, in Misc. Case No. 257 of 2013,
this Court has already allowed the prayer of the appellant on
12.08.2013to raise the above ground for decision, since the same is founded on law which requires no further tendering of evidence by the parties and the parties were well aware of it. However, it was not decided as the counsel perhaps could not properly submit which also the court missed though all the materials were there before the court and those stood admitted.
During hearing of this appeal, learned counsel for respondent no.1 has raised an objection that at this stage such a new ground ought not to be entertained.
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The Ext.F (marked here) being read with Ext. C, goes to show that the earlier suit was between the parties concerning the subject matter and at the time of institution of the suit from which this appeal arises, the said suit was pending and that has been dismissed later, during pendency of the present suit. The plaintiff P.W.5 has admitted this in her evidence. Thus the prayer for adducing the said order as additional evidence squarely merits acceptance satisfying the required legal parameters and it will in no way cause prejudice to the respondent no.1 nor she is going to be put to surprise as not in a position to counter it by evidence. This acceptance of additional evidence simply confirms the oral evidence. Thus the same is marked as Ext. F. To permit the appellant to urge as an additional ground in this appeal, the suit being barred in law as provided in Order 23, Rule 1(4) and other provision of the Code is permissible as the same is purely based on law which will not cause any surprise to the other side as the respondent No. 1 was well aware of it and it was then within her full knowledge, and also that the same would not cause any prejudice to the respondent No. 1. The appellant is thus permitted to urge the additional ground which is pure and simple question of law and in the circumstances has to be regarded as of a substantial nature, when the decision therein would be available to be given on the existing pleading and evidence.
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11. Section 12 of the Code bars the plaintiff from instituting further suit based on and in respect of such cause of action which was the cause of action in earlier suit. There is no provision in law which permits institution of fresh suit by plaintiff for one subject matter with same cause of action.
A party is required to take permission from the Court under Order 23, Rule 1(3) of the Code if the party wants to institute a fresh suit in respect of the same subject matter. This provision does not deal with a situation where before the withdrawal of the suit, the plaintiff files another suit and thereafter withdraws earlier suit. The Court can grant permission to file fresh suit only on satisfaction of fulfilment of the requirements under the provision of Order 23 Rule 1(3) of the Code. Thus when such specific procedure is prescribed in the code for filing fresh suit after institution of one suit by the plaintiff, then it is not permissible for the parties and in fact that stands excluded that they can do so on their own desire, whims and wishes by passing the procedure. This is not allowed and it makes the provisions of law nugatory.
Thus a party may file a suit in the court of law on accrual of cause of action and it is one suit only. Thereafter his suit is required to be dealt by the court in accordance with law and procedure provided for its dealing when the plaintiff loses his liberty
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to deal with his suit as per his desire. The code prescribes exhaustive procedures as regards the dealing with the suit.
When we glance at Rule 1 of Order 2 of the Code, it is seen that a duty is cast upon the plaintiff to frame the suit in such a manner so that final decision may be given by the Court UPON the SUBJECTS in DISPUTE (not only upon cause of action or relief claimed in the suit) and it should prevent further litigation. In Rule 2 of Order 2 "SUBJECTS in DISPUTE' has been used, which is wider than the words "cause of action" or "reliefs." Object of Rule 1 of Order 2 is to PREVENT FURTHER LITIGATION BETWEEN THE PARTIES TO THE SUIT. The sub-rules (2) and (3) of the Rule 2 of Order 2, C.P.C. do not permit plaintiff to left out any of the relief, which he could have claimed on accrual of the cause of action and if plaintiff omits to sue in respect of any portion of his claim, he is precluded from bringing second suit. Once the suit is filed by the plaintiff, the plaintiff is prohibited from amending the pleadings in any manner without leave of the Court under Order 6, Rule 17, C.P.C. Suit filed in the Court can be withdrawn by the plaintiff unconditionally under Order 23, Rule 1, C.P.C. which precludes plaintiff from instituting any fresh suit in respect of such subject-matter or such part of the claim, which is included in the suit. In case, plaintiff proceeds with the suit, it can be either decreed or dismissed after trial by determination of all the issues involved with action determining the entitlement of the plaintiff
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and defendant in relation to the reliefs claimed in the suit. In case, plaintiff proceeds with the suit, it can be either decreed or dismissed after trial by determination of all the issues involved with action determining the entitlement of the plaintiff and defendant in relation to the reliefs claimed in the suit. Dismissal of the suit may be for various other reasons like, dismissal for non-compliance of Court's order or dismissal in default or due to abatement etc., as the case may be. The Code of Civil Procedure itself provides when fresh suit can be filed even after dismissal of suit. Order 23, C.P.C. not only contains such provision permitting plaintiff to withdraw the suit without leave of Court but also keep his rights alive. Contrary it puts a specific bar against filing fresh suit. Therefore, once a suit is filed and un-conditionally withdrawn by the plaintiff, his claims, which he could have claimed but not claimed, stands relinquished as lost claim and loses his all rights for the claim for which suit was filed resulting into and of dispute relating to the SUBJECT of DISPUTE between the parties to the suit without leaving any scope of second suit for subject matter which was involved in the suit.
Also Order 9, Rule 9 of the Code bars a fresh suit in case of dismissal of the suit under Rule 8 of Order 9 of the Code. So also Order 22, Rule 9 of the Code bars a fresh suit and further rule prescribed that under the circumstances, the said suit may be revived for culmination.
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Thus it is clear that the bar under Order 23, Rule 1(4) is based on public policy with fundamental aim and object to avoid multiple suits may it be founded on same cause of action or may be relating to the same subject matter. The bar under Order 9, Rule 9 of the Code is founded upon the aim and object that forbid the plaintiff who is negligent or who in order to protect the litigation to harass the adversary and to go on taking advantage of his own wrong.
Similarly the objective behind the enactment of Order 2, Rule 2(2) and (3) of the Code is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for good reason.
12. At this moment, it is felt apposite to refer to the decision in case of Bakhatwar Singh and another Vrs. Sada Kaur and another; AIR 1996 SC 3488. In the said case, the plaintiff filed a suit for declaration that they were in possession of the property as owner of 2/3rd share in the estate of the late husband of defendant who had forfeited her right in the estate on account of her marriage by virtue of prevalent custom amongst them and the plaintiff being the reversionaries were entitled to inherit the same. The suit was dismissed on the finding that the defendant did not forfeit her right. The appeal filed by the plaintiff was allowed reversing the said
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decision of the trial court. Thereafter, the plaintiff again filed another suit to get back the possession of the suit land pleading therein that in the mean time, the defendant had taken forcible possession of the suit land. In the meantime, the defendant filed second appeal in the High Court against the judgment of the lower appellate court in the earlier suit but it was dismissed. The High Court however then granted certificate and leave to appeal to the Supreme Court on the point whether a widow forfeits her right or not by 'Karewa' marriage with her brother-in-law. Subsequently, the suit of the year 1964 was withdrawn by the plaintiff with a liberty to file a fresh suit in possession of the land. Contention was raised before the Supreme Court as to whether withdrawal of the suit of the year 1964 with permission to file a fresh suit on the same cause of action is in accordance with the provision contention Clause - 3 of Rule 1 of Order 23 of the Code and whether the plaintiffs were entitled to exclude the time spent in prosecuting the said earlier suit. The combined question stood thus as to whether the plaintiff being permitted to withdraw the suit in accordance with the provision contained in Clause - 3 of Order 22 of Rule 1 of Order 23 of the Code whether in the facts and circumstances of the cases are entitled for exclusion of time under section 14 of the Limitation Act. The Hon'ble Apex Court did not find any material to show that there was formal defect in the earlier suit for which reason it was sought to be
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withdrawn. But it took note of the fact that in the order, it was also not so indicated as to what was the formal defect in the suit by reason of which the permission to withdraw the same had been accorded. So, it has been held that a case of fresh institution of the suit on the same cause of action and for the same relief after due withdrawal of the earlier suit as in accordance with provisions of Clause - 3 of Rule 1 of Order 23 of the Code was not made out by the plaintiff. Consequently extension of the benefit under section 14 of the Limitation Act stood denied and it was not also so found on merit.
13. The decision in case of Jonnala Sura Reddy and another Vrs. T.I. Tyyagura Soubha Reddy and others; AIR 2004 AP 222 has been relied upon by the learned counsel for the appellant. In that case Plaintiff's suit for injunction against the defendant for interfering in possession with respect to suit property being decreed, the same also was confirmed in appeal. So, it came before the High Court in second appeal which was admitted on the substantial question of law as to whether the plaintiff can file a fresh suit on the same cause of action after withdrawing the earlier suit filed for the same relief and for the same cause of action besides another point with regard to grant of injunction in favour of a person who has not approached the court with clean hands and by playing fraud upon it. Facts remained that the plaintiff in the year 1984 filed a suit seeking an injunction against the defendant alleging that they were interfering
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with his possession since a particular date. Exparte interim injunction was issued. However, again the same plaintiff filed another suit for same relief and on the same cause of action giving the same date to be the date of interference with his possession in restraining the defendants from interfering with possession and exparte injunction was again granted. Thereafter, in the first suit, petition was filed for withdrawal. However, it was dismissed as not pressed. So, the maintainability of the second suit was questioned in view of the provision of Order 23 Rule 1 of the Code. The Hon'ble Court found on facts that in the suit where withdrawal was sought for no leave was prayed for filing a fresh suit and in the subsequent suit, there was no whisper about the filing of earlier suit. The Hon'ble Court ultimately dismissed the second suit being barred under Order 23 Rule 1 of the Code.
In case of Sarguja Transport Service vrs. S.T.A. Tribunal, Gwalior and others; AIR 1987 SC 88, the Hon'ble Court held that upon withdrawal of a writ filed by the petitioner without the permission to institute a fresh petition; he is precluded to file a fresh writ petition in respect of the same cause of action in the High Court under that Article. It will be worthwhile to quote the relevant para 7 of said decision.
"7. The Code as it now stands thus makes a distinction between "abandonment' of a suit and 'withdrawal' from a suit with
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permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom
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they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub- rule (3) in order to prevent the abuse of the process of the Court."
14. Learned counsel for the respondent No. 1 has relied upon a decision in case of Thota Chaina Subha Rao and others Vrs. Mattapalli Raju and others; AIR 150 FC-1. In that case in a second suit for redemption because as in a partition suit, the cause of action in redemption suit is a recurring one. So it has been held that the provision of Order 9 Rule 9 and Order 23 Rule 1 of the Code would not have their play in standing as bar. In the another decision cited in case of KMUR ULAGAPPA CHETTY Vrs. Ramanathan Chetty and another; AIR 1917 Madras 512, though the first suit was not withdrawn with permission to bring a fresh suit, as the fresh suit was based on different cause of action and claiming separate relief, the Hon'ble Court refused to apply the provision of Order 23 Rule 1(3) of the Code. In another decision in case of Alla Naur Sheikh Mohd
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Ismail Mohd Vrs. Nisha Abdul Raheman and others; AIR 1962 Punjab 50, the Hon'ble Court found the second suit for recovery of dower debt in view of the withdrawal of the earlier suit without leave by the widow filed for the administration of the estate of deceased husband with claim of some amount of dower debt as not barred under Order 23 Rule 1 (3) of the Code. It has been held that since both the suits are different in nature and based on different cause of action, the bar under law would not get attracted.
15. Before proceeding further at this stage respective pleading of the parties touching the above points are required to be seen. In the entire plaint presented on 01.03.1995 in the court of Civil Judge (Sr. Division) 1st Court, Cuttack giving rise to T.S. No. 100 of 1995 there is no mention of the earlier suit being filed by the plaintiff by presenting the plaint Ext. C in the court of 1st Munsif, Cuttack on 02.12.1994 and also nothing about its status much less to say about its nature, reliefs claimed the parties thereto and the subject matter as also the basis of claim. However, it was so stated by the defendant No. 1 in the very second paragraph of his written statement. As it appears the court below perhaps being swayed away by mistaken submission of the learned counsel for the defendant No. 1 while deciding issue no. 1, as regards the maintainability of the suit has gone to touch the question as to whether the second suit of is barred by the law of res judicata even after indicating in para - 7 of the judgment that the
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defendant No. 1 had challenged the maintainability of the suit on the ground that the plaintiff had abandoned the earlier suit. Next, it has gone to say that the earlier suit having not been heard and finally decided, and it being a dismissal simpliciter can't lead to a finding as regards this subsequent suit's non-maintainability. The approach in the matter by the trial court is not appreciated. It having been stated by the defendant No. 1 in the written statement in clear terms as regards the pendency of the earlier suit and its status as between the parties concerning the same subject matter, the duty of the court in the absence of any pleading to that effect by the plaintiff in the plaint and in view of her clear admission during her evidence in para 7 of her deposition as P.W.5 that the said suit had been dismissed, the trial court ought to have gone further deep into the matter. Let's now look at the evidence of plaintiff i.e., P.W. 5. Through her the defendant no.1 has proved the copy of the plaint Ext. C. She has during her examination-in-chief stated to have filed T.S. No. 224 of 1994 in the court of 1st Munsif, Cuttack and to have abandoned that suit being advised by her learned counsel to file the present suit giving proper valuation when no compromise was arrived at. So, in that event simply going through the plaint averment and the case as projected by the plaintiff therein, first of all the trial court ought to have considered as regards the suit if barred under the provision of Order 23, Rule 1(4) of the Code which are pure questions of law when for a decision on
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the above score the factual aspects stand un-disputed. However, that having not been done, this Court in seisin of the appeal which is a continuation of the suit and in view of the admitted factual possession can very well go into that question. The settled position of law is that a new ground raising a pure legal issue for which no enquiry/proof is required can be permitted to be raised by the Court at any stage of the proceeding.
( Ref-Keshavlal Lallubhai Patel vrs Lalbhai Trikumlal Mills Ltd; AIR 1958 SC 512; M.K.Ranganathan vrs. Government of Madras; AIR 1955 SC 604; Yeshwant Deorao vrs. Walchand Ramchand; AIR 1951 SC 16; Chittoori Subbanna vrs. Kudappa Subbanna; AIR 1965 SC 1325 and National Textiles Corporation Ltd vrs. Nareshkumar Badrikumar Jagad; AIR 2012 SC 264.
Moreover the principle of law is too settled that if the facts given in evidence clearly disclose the illegality the court is bound to take notice of the said fact even if not pleaded by the adversary. Again it has been held in case of State of Rajasthan vrs Kalyan Singh, AIR 1971 SC 2018 that though the issue is not very specific but undoubtedly it covers the plea taken in the written statement, the same can be considered as the plea of maintainability of the suit being essentially a legal plea. So if the suit on the face that no specific pleas were taken or no precise issues were framed is of little consequence.
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16. Adverting to the facts, in the first suit, the plaintiff claimed that late Sk. Mustak transferred as his share Ac.0.25 decimals in her favour in the year 1985. Thus, she is the owner of that piece of land and that was not accepted and agreed to by the defendant No. 1. So, the suit was filed claiming right, title and interest over the same and also for partition. The objection in the written statement had been raised by the defendant No. 1 that there was no such transfer and no such document in support of it. In the present suit, the very same relief in respect of that Ac.0.025 decimals of land belonging to late Sk. Mustak has been claimed. Now of course the claim is founded upon a specific way of acquisition that it was by an oral gift. Even in that, there appears no such difference that the transfer within its sweep includes gift. It is the settled possession of law that simply stating different dates as the cause of action for the suit would not suffice the purpose of entertainment of the subsequent suit saying it to have been different. It must be established that in substance the cause of action for the suits are different. It is worthwhile to place here the clear enunciation on the true meaning of the said expression i.e. cause of action in case of Church of Christ Educational Trust and Educational Charitable Society vrs. Ponniamman Educational Trust; (2012) 8 SCC 707:-
"'Cause of action, has been defined as meaning simply a factual situation existence of which entitles one person to obtain from
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the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action' has also been taken to mean that particular action on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action."
The above being the position of law, in view of the discussions already made by no stretch of interpretation, it is permissible to say that the subsequent suit was for a different cause of action and this court come to a conclusion that the subsequent suit between the parties for the same subject matter and relief's as that of the earlier suit and also for the same cause of action Therefore, the first suit having been dismissed, the plaintiff can be said to have abandoned her claim and for that reason the present suit is held as barred by squarely falling within the net of Order 23 Rule 1(4) of the Code. It is also hit by Order 2 Rule 1 and 2 of the Code. In view of this, the findings on other issues touching the merit of the competing claims which were not urged from the side of the appellant are not further gone into. Therefore, the trial court's finding that the suit is maintainable is held to be a flawed one. In that view of the matter, the suit is held to be not maintainable and that the
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court lacked in its jurisdiction to decide the suit. Therefore, the judgment and decree under challenge in this appeal are liable to be set aside.
17. In the light of the above discussion, this Court is of the view that the appeal deserves to be allowed and accordingly, it is allowed, in the circumstances without cost throughout. The said judgment and decree passed by the trial court in T.S. No. 100 of 1995 are hereby set aside.
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D.Dash, J Orissa High Court, Cuttack th Dated 20 November, 2014/Narayan
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