Delhi High Court
Shri Jyoti Prashad And Ors. vs Shri Nathu Ram on 14 October, 2004
Equivalent citations: 116(2005)DLT585
Author: Anil Kumar
Bench: Anil Kumar
JUDGMENT Vijender Jain, J.
1. Aggrieved by the judgment and decree dated 16th September, 1985 passed by the learned Single Judge the present appeal has been filed by the appellant under Section 96 of the Code of Civil Procedure. Mr.Issar learned counsel appearing for the appellant has contended that provisions of Order 23 Rule 1 CPC cannot be applied to the suits instituted after withdrawal or abandonment of previous suit and the same cannot be read so as to b... of suit which has already been instituted before the other suit had been abandoned or dismissed. It was contended by learned counsel for the appellant the the learned Single Judge could not have dismissed or rejected the plaint within the ambit and scope of Order 7 Rule 11 CPC and, therefore, the rejection of plaint is liable to be set aside and the suit is liable to be restored. It was contended that in the previously instituted suit the cause of action was different. The suit was a suit for mandatory injunction and declaration and the specific suit was for partition.
2. Therefore, there were different cause of actions and the suit could not have been dismissed by the learned Single Judge. The rejection under Order 7 Rule 11 of the CPC of the suit was contrary to the provision of law as there was no scope of applying Order 23 CPC and rejecting the plaint under Order 7 Rule 11 of the CPC. In support of his contention learned counsel appearing for the appellant has sited the reliance of 1987 DLT 134, 1991 Vol.44, DLT 299, 1970 DLT 549. In support of his contention that the suit of the appellant could not have been dismissed. On the other hand learned counsel for the respondent has contended that the prayer in the previous suit for mandatory injunction and declaration and in the present suit for partition were identical. He has invited our attention to the prayer clause of in the previously instituted suit which is at page 7 of the paper book which reads as under:-
" It is, therefore, prayed that the plaintiffs be declared as owners of the half share of the property bearing Municipal No. 5458-5464 in Khasra No. 421, mesauring 150 sq.yards situated at Gali No. 71, Arya Samaj Raod, Rehgarpura, Karol Bagh, New Delhi and a decree to this effect be passed with costs in favor of the plaintiff and against the defendants 1 and 2."
3. Thereafter what appeared was with regard to the injunction against the some tenants of the property for which we are not concerned in the present proceedings. The learned counsel for the appellant has also invited our attention to the prayer of the present suit at page 29 of the paper book which is to the following effect:-
" Hence the plaintiffs pray that a decree for partition by metes and bounds of the suit property may kindly be passed in favor of the plaintiff against the defendant and the plaintiffs' + share therein be separated and possession of their separated scare by partition be delivered to the plaintiffs in accordance with law."
4. It was also contended that in view of the fact that suit was abandoned by the appellant knowingly when the suit was going to be dismissed the institution of the suit on 2nd August, 1984, the statement of the counsel for the appellant the previously instituted suit was recorded by the trial court on 3rd August, 1984 and suit was ultimately abandoned by the appellant on 6th August, 1984. It was contended before us that the provisions of Order 23 Rule 1(4) CPC are attracted to the present case and in support of his contention learned counsel for the respondent has relied upon M/s Kishan Chand Surendra Kumar vs.Delhi School Teachers Co-operative Housing Building Society Ltd.
5. We have given our careful consideration to the arguments advanced by the learned counsel for both the parties. Appellant Along with his two brothers, all sons of late Mangla Ram, filed Suit No. 1220/1984 claiming a decree for partition of half share of the immovable property bearing Municipal No. 5458-5464 wherein 150 sq.yards situated at Gali No. 71, Arya Samaj Raod, Rehgarpura, Karol Bagh, New Delhi against Nathu Ram. It was the case of the appellant that Mangla Ram, father of the appellant died on 25th August, 1970 and at the time of his death, the suit property was owned by the deceased in equal share with his brother Nathu Ram. Nathu Ram is the uncle of the appellant. It was the case of the appellant that Mangla Ram and Nathu Ram continues as point owners of the suit property and after the death of Mangla Ram his share in the property was mutated in the name of his widow Smt.Prabhati Devi and after the death of Prabhati Devi the appellants became the joint owners of the suit property with respondent. When the other suit was filed by Jyoti Prasad and others and that is the suit for mandatory injunction and declaration. The prayer clause of which we have reproduced above. Written statement was filed by the respondent. In para 4 of the preliminary objection the plea taken by the respondent was as under:-
"That suit is not maintainable as the plaintiff has no right or interest in the suit property. The defendant No. 1 is the exclusive owner of the property in suit by virtue of the lease deed executed by the Delhi Improvement Trust in his favor and the lease continue to be in his favor. That the property in suit is self-acquired property of the defendant No. 1."
6. The replication was filed by the appellant to the written statement in the suit and from the pleadings of the parties, following issues were framed:-
1) Whether the plaintiff is precluded from filing the present suit as per the preliminary objection No. 2 taken in the written statement? If so, to what effect?
2) Whether the suit has been properly valued for purposes of court fee and jurisdiction? If not, to what effect?
3) Whether the plaintiffs are entitled to half share and separate possession of the Property Nos.5458 to 5464, Gali No. 71, Arya Samaj Raod, Rehgarpura, Karol Bagh, Delhi, as alleged in the plaint?
4) Relief.
7. On 3rd August, 1984 in the previously instituted suit a statement was made by all the three plaintiffs in that suit were the appellants in this appeal, i.e., Jyoti Prasad, Kundan Lal and Deep Chand that they wanted to withdraw the suit. Thereafter it is relevant to record the order passed by this Court on 3rd August, 1984 statement of plaintiffs recorded through R.C.Chopra, Advocate for the defendants wants to argue the matter on the point that the plaintiffs cannot abandon the suit when the suit on its last leg. Her request is allowed and the case is adjourned for 6th August, 1984. On 6th August, 1984 the order sheet recorded:-
" Present: Sh. S.K. Sharma, Advocate for the plaintiffs Sh. R.C. Chopra, Advocate Along with Sh. K.C. Chopra for defendants1and 2.
Defendants 3 to 10 are proceed ex- parte.
Defendant No.11 has already been dropped.
Sh.Sharma, Advocate has submitted that the plaintiffs are abandoning the suit and they may be allowed. Taking into consideration the statement made by the plaintiffs and the arguments raised by Sh.R.C.Chopra, Advocate, the suit is dismissed as abandoned Sh.Chopra, Advocate submitted that the plaintiffs may be penalised with the heaviest costs, as they dragged the litigation for about 2/3 years, and now withdrawing themselves from the suit unconditionally. Taking into consideration the facts and circumstances of the case, the plaintiffs are directed to pay the costs of Rs. 200/- to the defendants 1 and 2. File be consigned to recored room.
Announced in open court.
Sd/-
R.K.Yadav, Sub-Judge, Delhi 6th August, 1984"
8. Therefore the learned Single Judge in the impugned judgment held that after plaintiff led the evidence and finding there was no chance of their suit being decreed, made a statement withdrawing the suit which was dismissed as abandoned and, therefore, the present suit was barred under Order 23 Rule 4 and, therefore, the respondent prayed before the learned Single Judge that, however, no evidence was required and the suit filed by the appellant was barred under Order 23 Rule 1(4) of the CPC. Mr.Issar has contended that there sere different prayers and cause of action was different for filing the two suits, therefore, the provisions of Order 23 Rule 1(4) will not be applicable. We have reproduced prayer clause of both the suits above. It cannot be said that in the sum and substance the prayers sought in the both the suits were not identical. The Court cannot go merely to the form or headings, Court must go to the substance of the prayer to determine as to whether the prayers are identical or different Cause of action will also depend on the prayers sought in the suit as relief claimed and the cause of action are on the basis of which relief cannot be granted or rejected to the plaintiffs and for the purposes of cause of action of the facts pleaded have to be looked as a bundle of facts in the collective capacity which give right to a claim. Each fact cannot be looked into isolation. We entirely agree with the reasoning of the learned single Judge that if the relief claimed in subsequent suit though not expressly stated but was implicit in the previous plaint by the reason of the bundle of fact pleaded constitute the same for the cause of action, the plaintiff certainly would be disbarred from claiming the relief in a subsequent suit based on the same bundle of facts. In the present suit, the cause of action for filing the suit by the appellant was the same. The appellant claimed joint ownership of the house through their father and the relief claimed in both the suits were exactly the same. On 6th August, 1984 when the sub-Judge, Delhi passed the order allowing the request of the appellant to abundant the suit which was opposed by the respondent saying that they cannot withdraw the suit unconditionally. Counsel for the respondent also sought costs for dragging the litigation for two to three years and as a matter of fact the cost of Rs. 200/- imposed on the appellant. Although we have found from the plaint that the date of filing of the suit is 2nd August, 1984, we do not know whether said suit was registered on 3rd August, 1984 as no decree sheet has been filed by the appellant. Be that as it may as a matter of fact, it was a clever device of the appellant to overreach the process of law on filing the plaint on 2nd August, 1994 in the preciously instituted suit the appellant made statement that they no longer want to continue with their suit and they would like the same to be abundant. The learned Single Judge has rightly come to the conclusion that the appellant cannot be allowed to misuse the process of law. The reliance placed by the learned Single Judge on the order passed by Sh. P.D.Jarwal, sub-Judge on 21st May, 1982 on the application moved by the party in the previously instituted suit is of relevance.
'' On the perusal of the document of the defendant, it is clearly established that the suit property has not been divided and it is not owned by the plaintiff and the defendant but only it is the property of defendants 1 and 2. The plaintiffs have failed to establish their claim that they are joint owners of the suit property nor they have any documents which could prove their claim. The plea of the plaintiffs that they are accepting the rent from the tenant will not make them as owner of the suit property.''
9. It was on the basis of these orders and inferring from the said order that the learned subordinate Judge has taken into consideration the original lease deed filed by the defendants showing Nathu Ram as sole owner of the property since 1934, that application of the appellant was dismissed and an appeal was preferred by the appellant which was also dismissed by the Additional District Judge, Delhi. In view of the findings on the facts by two courts it was a clever device on the part of the appellant to ile a suit in High Court on 2nd August, 1984. It is a clear case of an abuse of the process of this Court. The object was only to drag on the litigation for years.
10. Let us deal with the authorities cited by the learned counsel for the appellant 1987 DLT 184 Man Mohan Singh Bhalla vs. H.L.Mehra (H.U.F.) and Ors. In the said judgment the learned Single Judge of this Court took the plea in view of the application as it was contended that Section 45 of the Delhi Rent Control Act was not barred under Order 23 Rule 1 (4) of the Code of Civil Procedure. Therefore, nothing would turn round on the ratio of this judgment. In Inderpal Singh, etc., vs. Inder Kaur, etc., 44 (199) DLT 399, the view taken by the Division Bench of this Court was on the basis of subject matter of the suit in that case, a suit for partition was dismissed as withdrawn without permission to file fresh suit by Court. The second suit was filed for declaration and injunction and that suit was filed on the basis of certain codicile or compromise of earlier suit. In that circumstances, the Court held that the suit would not be barred under the provisions of Order 23 Rule 1 (4) CPC.
11. Here the case is totally different as the learned Single Judge has come to the conclusion and rightly shown in our considered opinion, that the prayers, subject matter, bundle of facts were all identical and it was simply an abuse of process of Court to first withdraw the suit which the appellant knew very well that the suit was going to be against him and to file the present suit for partition.
12. Looking from other angle, the authority cited by the learned counsel for the appellant in Inder Pal's case would also not be helpful as a suit for partition may be withdrawn without leave and still parties will have a right to file an another suit for partition but that cannot be said with regard to the suit which was filed earlier for mandatory injunction and declaration. We have seen the authority cited by the learned counsel for the respondent in M/s K.C. Surinder Kumar Vs. Delhi School Teachers Co-operative House Building Society Ltd., . There is no discussion in the said authority with regard to the authority cited by the appellant in Inder Pal Singh (supra) and Manmohan Singh Bhalla's case. However, the reliance placed by the Division Bench in the case of H.R.Baij Nath vs.K.B.Dass and Co. . is material which reads as under:
"The language of the Order 23 Rule 1, sub-Rule 1 CPC gives an unqualified right to a plaintiff to withdraw from a suit is sought under sub-Rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub-Rule(3) of that Rule."
13. The intention of the Legislature while incorporating the aforesaid rule as well as the date of the Court is to see that the parties are limited to the one round of the litigation and must raise content with the final result and to discourage them to re-agitate the matter all over again by filing a fresh suit on the same cause of action and claiming the same. Looking from any angle, we do not find any merit in this appeal.
14. We could have dismissed this appeal on the ground that neither the copy of the decree suit has been filed nor any application of exemption to do so have been filed. However, we thought that as the issue involved is of a considerable importance, we have gone in detail in the merit of the subject matter of the controversy.
15. No merit in the appeal.