Jammu & Kashmir High Court
The Kartar Singh And Ors. vs Shiv Rattandev Singh And Ors. on 2 June, 1995
Equivalent citations: AIR1996J&K32, AIR 1996 JAMMU AND KASHMIR 32
ORDER A.M. Mir, J.
1. This revision petition arises out of an order passed by Sub-Judge Poonch on 31-3-1993 in suit File No. 61/92. Trial Court under the impugned order decided the following three issues on preliminary basis :--
(i) Whether the present suit is hit by res-judicata? OPD
(ii) Whether the plaintiff has no right or cause of action to file the present suit ? OPD
(iii) Whether the present suit is not maintainable for want of necessary parties ? OPD
2. Presently the order is challenged in so far as it relates to the first two issues as the same have been decided against the petitioner.
3. The suit before the Trial Court was for declaration of ownership with possession in respect of Khasra No. 3220 measuring 3-kanal I-marla situate at Poonch town near Jail, along with a single storey house. A prayer of consequential relief of permanent prohibitory injunction restraining the defendants from interfering or disturbing the possession was also made.
4. Prior to this suit No. 54-A-civil of 1991 had been filed by the plaintiff for grant of decree of declaration that plaintiff in the capacity of being son of Kartar Singh (defendant No. 1) was the owner of land comprising of Khasra Nos. 2731, 2732, 2738, 2739, 3219, 3220 & 549/1. In addition to such relief an agreement to sell dated 25-5-1991 which relates to proposed transfer of land measuring 1-kanal 10-marla comprised in survey No. 3220 was sought to be declared null and void and inoperative against the plaintiff. Besides this an 'AAknama1 executed on 1-7-1991 was also called in question. The earlier suit was against Kartar Singh, Rajinder Singh and Bikramdev Singh whereas (he present suit has added Bikramdev Singh, Molvi Ghulam Qadir and Fida Hussain as defendants. Earlier suit was withdrawn by the plaintiff on 27-3-1992. On that day neither any permission was sought nor was the same granted for filing a fresh suit. On a plea of res-judicata and lack of cause of action having been taken by the defendants the Court ' framed eight issues and three of them were treated as preliminary issues and decided by the impugned order. Trial Court has replied both the issues in negative. Hence this revision.
5. The case of the petitioner is that once the matter was withdrawn from the Court, a fresh suit could not be filed withn respect to the same property under Section 11, C.P.C. Besides this, as no permission for institution of a fresh suit was granted by the Court at the time of withdrawal of the earlier suit, the suit was barred by Order 23, Rule 4, C.P.C. therefore, fresh suit could not be filed.
6. I have heard the learned counsel for the parties and considered the case.
7. For attracting application of Section 11, C.P.C. following conditions are required to be fulfilled :--
1. That the litigating parties in both the suits must be the same;
2. That the subject matter in both the suits should be directly and substantially same;
3. That the matter should have been finally decided in the earlier suit;
4. That the Court which has decided the matter earlier should have been competent to decide the same.
8. True that both the suits were primarily for declaration. As described above, other reliefs sought in the earlier suit were altogether different. Besides this in the earlier suit the relief of declaration was sought by the plaintiff in his capacity as son of respondent Kartar Singh. Earlier suit related to a considerable chunk of land comprising of as many as seven survey numbers in addition to survey No. 3220 to which the present suit relates. The specifications of the land under this survey number are vividly distinct. Relief of permanent prohibitory injunction in both the suits flows from this relief as a consequence. No issues in the earlier suit were struck nor was any of them decided on merits.
9. We will have to answer the following two important questions in this case in the backdrop of above observations :--
(i) Whether the subject matter in both the suits was directly and substantially same;
(ii) Whether the matter was finally decided in the earlier suit.
10. Code of Civil Procedure does not define the expression 'subject matter'. However subject matter does not mean the property in dispute only. On the other hand it includes a right in such property which the plaintiff seeks to enforce. This expression also includes a cause of action and the relief claimed. The perception about the 'subject matter' of a suit can be gather from a series of acts or transactions which might have existed in order to give rise to a relief claimed. The Supreme Court in Vallabhadha v. Dr. Madanlal reported in AIR 1970 SC 987 held that the term 'subject matter' means that bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed for. Therefore, in order to determine as to what is the subject matter of a suit, one will have come to a finding that's cause of action accrues or survives. For doing so one will have to go to the series of acts and transactions alleged to have given rise to a cause of action.
11. In the present case both on measurement of the land, its description in the two suits, the capacity in which the relief of declaration is sought, the variation in items of property and the distinction between the reliefs demarcates a marked distinction between the subject matter of the two suits. Moreover, in a suit for permanent prohibitory injunction it is possible that the forebearance of defendants to interfere into the possession might led a belief to the plaintiff that he did not have any threat of interference. If he withdraws a, suit on such belief and after sometime that threat again starts a fresh cause of action can accrue to him. What I mean to emphasise is that an occasion to file a suit for injunction can arise at any time when a fresh attempt of interference is made. On this analysis I do not find the subject matter of the two suits to be directly and substantially the same.
12. The earlier suit has only been withdrawn and no finding on any of the issues had been returned. Therefore, earlier suit cannot be said to have been heard and finally decided by the Court. Section 11, C.P.C. envisages that the issue coming up in the fresh suit must have been directly and substantially in issue in the earlier suit or such issues must have been raised, heard and finally decided by the Court. In a case where a suit is withdrawn and compromised before framing of issues it cannot be said as to what were the issues directly and substantially arising out of that suit. Therefore, the question of such issues having been raised, heard and finally decided in the earlier suit would not arise. The object of principle of res-judicata is to lend finality to the adjudications made by a competent Civil Court on definite issues between the same parties. In other words where a question is answered by a Court in respect of the same subject matter between the same parties it becomes final and cannot be re-opened or re-agitated in a subsequent suit. However, in "case of a withdrawal the Court has no occasion of deciding an issue, therefore, such withdrawal will not come within the purview of "heard and finally decided" Code. This view is fortified by a Single Bench judgment of Delhi High Court, reported in AIR 1987 Del 226. In this case a petition for eviction was withdrawn as a result of compromise between the parties. The plea of res-judicata in respect of a subsequent application for eviction on same grounds was rejected because earlier petition had not been decided on merits. Reliance in this case has been placed upon AIR 1967 SC 591. The apex Court in this authority has unequivocally held that even a decree passed on compromise of the parties cannot be taken to be a decision of the Court and the same does not operate as res-judicate in a subsequent suit which is contested on merits.
13. Foregoing anology leads me to the conclusion that the subject matter between the two suits cannot be held to be directly and substantially same, New cause of action could have accrued to the plaintiff for filing a subsequent suit. Earlier suit was not finally heard and decided on merits, therefore, the plea of res-judicata taken by the defendants-petitioners fails.
14. So far as application of Order 23, Rule 4, C. P.C. is concerned the interpretation of the expression "subject matter" as detailed above in the preceding paragraphs of the judgment go a longway in answering this question also. 'Subject matter' in both the cases not being the same, bar created by Order 23, C.P.C. could not have been pressed into service. In AIR 1970 SC 987 the apex Court after drawing a distinction between "property under dispute" and "subject matter" held that "subject matter" includes cause of action also. Therefore, a subsequent suit could not be thrown out because the permission of the Court under Order 23, C.P.C. was not obtained for filing a fresh suit when earlier suit was withdrawn. This point also came up for consideration before Patna High Court in AIR 1977 Pat 90. That Court while relying upon A!R 1970 SC 987 again laid down the same preposition. The result being that a subsequent suit filed on a fresh cause of action was not allowed to be thrown out because while withdrawing the previous suit permission of the Court in terms of Order 23 had not been obtained. The question also came up before Bombay High Court in E. Ratnam v. Vema Chandra Shiv Data, reported in AIR 1970 Bombay 111. (sic)? The Court again, after drawing a distinction between 'subject matter' and 'property under dispute' laid stress on accrual of a fresh cause of action being responsible for filing a subsequent suit. Therefore, the plea of bar created by Order 23, Rule 4, C.P.C. was dismissed and the suit was entertained although while withdrawing the earlier suit, no permission of the Court was obtained.
15. On the strength of the authorities referred to above I find that where a fresh cause of action accrues to the plaintiff for filing a suit he can do so and withdrawal of an earlier suit, without the permission of the Court for filing a subsequent suit, will not attract the bar of Order 23, Rule 4, C.P.C.
16. On the anvil of the aforesaid discussions Trial Court has correctly decided the issues and the order impugned does not suffer from any error of law of jurisdiction. I find no substance in this petition, which is accordingly dismissed. Interim direction issued on 23-11-1993 shall stand vacated.