Gujarat High Court
Chandubhai Karsanbhai Rojasara vs Deputy Collector, Vadhvan Sub Division on 2 December, 2025
NEUTRAL CITATION
C/SCA/26834/2022 ORDER DATED: 02/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26834 of 2022
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CHANDUBHAI KARSANBHAI ROJASARA & ORS.
Versus
DEPUTY COLLECTOR, VADHVAN SUB DIVISION & ORS.
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Appearance:
MR MEET D KAKADIA(11896) for the Petitioner(s) No. 1,2,3,4
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4
MR. JAY TRIVEDI, LD. ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
MR AB GATESHANIYA(3766) for the Respondent(s) No. 3,4,5
NOTICE SERVED for the Respondent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 02/12/2025
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;
"(A) Your Lordship may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside impugned order dated 21.02.2022 passed by the respondent-Deputy Collector in Revision Application No.15 of 2021 (At Annexure-Q) in the interest of justice.
(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of the impugned order dated 21.02.2022 passed by the respondent-Deputy Collector in Revision Application No.15 of 2021 (at Annexure-Q) in the interest of justice.
(C ) Pass any other and/or further orders that may be thought just and proper, in the fact and circumstances of the present case."
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2. Facts, giving rise to the filing of the present application may be summarized as under;
2.1 The controversy involved in the present case revolves around the right of way to access lands bearing Revenue Survey No.41 (old Revenue Survey No.51), Revenue Survey No.55 (old Revenue Survey No.50/1), Revenue Survey No.46 (old Revenue Survey No.44/p2/2) and Revenue Survey No.35 (old Revenue Survey No.45/p1) situated at village:Vithalpara, Taluka: Lakhtar, Dist: Surendranagar, which are owned and occupied by the present writ applicants.
2.2 The private respondents are the owners and occupants of lands bearing Revenue Survey No.39 (old Revenue Survey No.49/p2), Survey No.36 (old Revenue Survey No.49/p1 and Revenue Survey No.40 (old Revenue Survey No.55) situated at village: Vithalpara, Taluka: Lakhtar, Dist: Surendranagar.
2.3 The writ applicants are using the way passing from the eastern and southern periphery of the lands owned by the private respondents to access their lands, and the writ applicants and their forefathers have been using the said way since decades.
2.4 The private respondents herein created obstructions on the said road so as to restrain the writ applicants from accessing the said way, and therefore, the writ applicants initiated proceedings before the Mamlatdar under Section 5 of the Mamlatdar's Court Act for removal of illegal obstruction and for restraining the private respondents from disturbing the right of way of the writ applicants on 12.11.2020, which was then numbered as Mamlatdar's Court Case No.12 of 2020, Page 2 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined wherein notice also came to be issued to the parties, whereby the private respondents were informed to remain present before the Mamlatdar on 05.01.2021.
2.5 Thereafter, on 18.01.2021, Panchnama of the said lands was executed in the presence of Mamlatdar by the Circle Officer and Revenue Talati, wherein it is clearly opined that the right of way as claimed by the writ applicants exists and said way is obstructed by the private respondents, and the said Panchnama has never been disputed by the private respondents.
2.6 An affidavit had also been filed by the respondent No.6 in favour of the writ applicants before the Mamlatdar stating therein that the right of way did exist, and thereby supported the case of the writ applicants.
2.7 Thereafter, after hearing all the parties, and after considering and appreciating the entire evidence on record, including the Panchnama dated 18.01.2021, the Mamlatdar came to the conclusion that right of way does exist in favour of the writ applicants and was pleased to allow the suit of the writ applicant by reasoned order dated 24.02.2021 and was further pleased to direct the private respondents to remove the obstructions forthwith.
2.8 Being aggrieved by the aforesaid order dated 24.02.2021, the respondent Nos.3 to 5 herein, approached the Deputy Collector by filing revision application under Section 23(2) of the Mamlatdar's Court Act being Revision Case No.15 of 2021 along with an application for condonation of delay.
Page 3 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined The main contention of the respondents while objecting to the order of the Mamlatdar was that there was an alternative road to access the land of the writ applicants to reach to their lands.
2.9 The writ applicants appeared in the said proceedings and filed a detailed reply on 11.10.2021.
2.10 Thereafter, the respondent-Deputy Collector, vide the impugned order dated 21.02.2022, allowed the revision application filed by the private respondents by quashing and setting aside the order of the Mamlatdar observing therein that the Mamlatdar had no jurisdiction to adjudicate the same.
2.11 Being aggrieved, the writ applicants are here before this Court with the present writ application.
3. Learned advocate Mr. Meet D. Kakadia appearing for the writ applicants has submitted that the impugned order passed by the respondent-Deputy Collector dated 21.02.2022 is absolutely illegal, unjustified and arbitrary being passed without appreciating the evidence on record in its proper sense and true perspective, and as such, deserves to be quashed and set aside. Learned advocate Mr. Kakadia has further submitted that the impugned order passed by the Deputy Collector is based upon incorrect assumption regarding lack of jurisdiction. He has also submitted that the respondent-Deputy Collector has set aside the well-reasoned order of the Mamlatdar and has also set aside the findings of facts arrived at by the Mamlatdar only on the ground that the Mamlatdar lacks jurisdiction to entertain the application filed by the writ applicants. Learned advocate Mr. Kakadia has further Page 4 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined submitted that the respondent-Deputy Collector has wrongly recorded the findings that the suit filed by the writ applicants before the Mamlatdar is time-barred and that the dispute having already been agitated by the ancestors of the writ applicants and the private respondents before the competent Civil Court almost 28 years ago, and as such, the order passed by the Mamlatdar was without jurisdiction. He has also submitted that the respondent-Deputy Collector has committed grave error in not appreciating that the cause of action of the case on hand has arisen only three months prior to filing of the present case as has been specifically averred by the writ applicants and has also been confirmed by the Mamlatdar.
4. Learned advocate Mr. Kakadia has further submitted that the respondent-Deputy Collector also failed to appreciate that the previous dispute which was agitated by the ancestors of the writ applicants and the private respondents had already been settled and pursuant to which, the way had already been opened, and therefore, such a dispute having been agitated 28 years ago from the date of the filing of the suit, cannot be a bar for adjudication of the dispute on hand. Moreover, as per Section 22 read with Section 5 of the Mamlatdar's Court Act, such dispute would clearly be maintainable, and as such, Mamlatdar has adequate jurisdiction to adjudicate the dispute on hand, and as such, the impugned order being contrary to law and evidence on record, is not tenable in law, and therefore, deserves to be quashed and set aside. Learned advocate Mr. Kakadia has also submitted that even during the Page 5 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined proceedings before the Mamlatdar, the respondent No.6 herein filed an affidavit in favour of the writ applicants specifically stating therein that the right of way did exist to the writ applicants, and on the basis of the said affidavit as well as the other materials available on record, the Mamlatdar rightly passed the order on 24.02.2021 directing the private respondents to remove the obstruction forthwith. However to the utter shock and surprise to the writ applicants, the said respondent No.6, during the proceedings before the Deputy Collector initiated by the respondent Nos.3 to 5, took a complete u-turn and filed an affidavit in favour of the private respondents denying the right of way and further denying his earlier affidavit. He further submitted that after the aforesaid affidavit being filed by the respondent No.6, the writ applicants made an inquiry and came to know that some of their ancestors viz. Karsanbhai Popatbhai Patel, Gobarbhai Talshibhai Patel and Bhathibhai Kashirambjhai Patel had filed case before the Mamlatdar against the ancestors of the private respondents and had been granted interim relief by the Mamlatdar in the year 1991. Thereafter, the writ applicants also came to know about the Regular Civil Suit No.33 of 1993 filed by the ancestors of the writ applicants before the competent civil court in 1993. In the said suit, the ancestors of the writ applicants prayed for interim injunction, which was granted in their favour in Exh.5 application in the year 1993. However, thereafter, the said suit was dismissed for default for non-appearance of parties, and thus, it can be presumed that some settlement might have occurred between them. Thus, it clearly appears that he suit was not adjudicated on merits and Page 6 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined was dismissed for default due to non-appearance of both the sides. Learned advocate Mr. Kakadia has submitted that thereafter, the ancestors of the writ applicants and their lineage have been using the said right of way/road and they have not been obstructed or restrained from using the said road for a period of 28 years, which is clearly apparent from the findings recorded by the Mamlatdar.
5. Learned advocate Mr. Kakadia further submitted that neither the writ applicants nor the private respondent Nos. 3 to 5 were aware about the aforesaid civil proceedings, and it is only after the same being disclosed by the respondent No.6 before the Deputy Collector, that the writ applicants and the private respondent Nos.3 to 5 came to know about the same. He also submitted that merely because civil proceedings ensued between the ancestors of the writ applicants and the private respondents with regard to right of way, it cannot be inferred that the cause of action in the present case was time barred and that the Mamlatdar did not have jurisdiction to adjudicate the dispute on hand, which is a separate dispute having been arisen from a separate cause of action, and therefore, the same was well within the jurisdiction of the Mamlatdar, and as such, the order passed by it is well- reasoned order, and as such, did not require to be interfered with by the Deputy Collector. Learned advocate Mr. Kakadia has further submitted that thereafter, again, the respondent No.6 filed an affidavit in favour of the writ applicants contrary to its earlier affidavit, and as such, it is amply clear from the said affidavits of the respondent No.6 that the road in question Page 7 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined has been used and utilized by the writ applicants and their ancestors since 1993.
6. Learned advocate Mr. Kakadia has further submitted that as per Sections 5 and 22 of the Mamlatdar's Court Act, it is clear that the Mamlatdar can exercise power under Section 5 of the Mamlatdar's Court Act in case any right of way is violated and further it is clear that the exercise of such powers and adjudication done by the Mamlatdar will remain in force until otherwise, ordered, decreed or ousted by a competent civil court. He has submitted that herein in the present case, there is no contrary order, decree against the order of the Mamlatdar and that the same has also not been ousted, and therefore, the Mamlatdar has ample jurisdiction under the Mamlatdar's Court Act to adjudicate the present dispute on hand. He has also submitted that the cause of action in the present case is completely different than the cause of action of the previous case, and therefore also, for a fresh cause of action, jurisdiction cannot be said to be vitiated.
7. Learned advocate Mr. Kakadia has further submitted that the writ applicants have been using the said right of way since long and there is no evidence on record to dispute the claim of the writ applicants that they have been using the said way after the disposal of the civil proceedings initiated by their ancestors, and the findings of the Mamlatdar as well as the contents of the Panchnama is very clear in this regard, and as such, the present case being based upon a fresh cause of action, cannot be said to be out of purview of the provisions of the Mamlatdar's Court Act. He further submitted that looking Page 8 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined to the provisions of Section 5 of the Mamlatdar's Court Act, when a right to way is obstructed and such obstruction is hampering agricultural activities, the Mamlatdar has the power to issue an injunction, and therefore, in the case on hand, the Mamlatdar has all jurisdiction to entertain the same. Learned advocate Mr. Kakadia has also submitted that by virtue of impugned order, the writ applicants will be dispossessed from their lands for agricultural purpose, even despite way being in existence, and therefore, the impugned order is clearly contrary to the underlying object of the Mamlatdar's Court Act which ensures that obstruction may not be made to hamper the agricultural activities, and therefore also, the impugned order is not tenable and deserves to be quashed and set aside. Learned advocate Mr. Kakadia has further submitted that in the facts and circumstances of the present case, the writ applicants have all the three ingredients, namely, prima facie case, balance of convenience and irreparable loss and damage in their favour, and therefore also, the present application deserves to be entertained. Learned advocate Mr. Kakadia has also submitted that it is held by the Hon'ble Apex Court in the case of State of Uttar Pradesh & Anr. vs. Jagdish Sharan Agrawal & Ors., reported in (2009) 1 SCC 689 that the dismissal of the suit for non-prosecution was not a decision on merit, and therefore, cannot be operate as res judicata.
8. In such circumstances, referred to above, learned advocate Mr. Kakadia prays that there being merit in the present application, the same be allowed, and the relief, as prayed for, be granted.
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9. On the other hand, the present writ application has been vehemently opposed by learned advocate Mr. Gateshaniya appearing for the respondent Nos.3 to 5. He has submitted that the present application is required to be dismissed solely on the ground that there was suppression of material facts by the writ applicants. Learned advocate Mr. Gateshaniya has further submitted that the civil suit instituted by the ancestors of the writ applicants against the ancestors of the respondents in the year 1993, were based upon the same set of facts as raised in the present proceedings, which can be verified from the documents available on record, especially from the civil suit filed by the ancestors of the writ applicants, which has already been produced on record. He has submitted that if the said suit is to be seen, it appears from the same that both, the present proceedings and the civil suit are based upon the very same set of facts and the relief as sought for is also the same, and as such, on the very same set of facts and relief, the second proceedings cannot be instituted. Learned advocate Mr. Gateshaniya has also submitted that, in fact, due to non- availability of the plaintiffs to the said suit, the said proceedings were terminated by the competent civil court for want of prosecution under Order IX,Rule VIII CPC, and as per the said provision, the only remedy lies with the plaintiffs therein is to revive the said suit and not to file another suit on the same set of facts. However, in the present case, instead of initiating appropropriate proceedings before the competent civil court, the writ applicants straightway initiated proceedings before the Mamlatdar under Section 5 of the Mamlatdar's Court Act, and at the time of initiating the said Page 10 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined proceedings, the writ applicants had suppressed the fact of initiation of civil proceedings by their ancestors, and its dismissal. He has further submitted that if the writ applicants had disclose the said fact before the Mamlatdar, then the outcome of the said proceedings would have been different. Learned advocate Mr. Gateshaniya has also submitted that there is a specific bar under Section 26 of the Mamlatdar's Court Act against initiation of any proceedings before any authority, if on the same set of facts, a civil suit has already been filed claiming any civil right, and as such, the respondent- Deputy Collector has rightly held that the Mamlatdar had no jurisdiction to decide the issue in question, and directed the parties to agitate their grievance before the competent civil court. Learned advocate Mr. Gateshaniya has further submitted that the findings arrived at by the Deputuy Collector are just, fair and reasonable, and as such, does not require to be interfered with. Hence, the present application, being devoid of merit, requires to be rejected.
10. The present application has also been opposed by the learned AGP Mr. Jay Trivedi appearing for the State- respondents. He has submitted that essentially the dispute involved is between the two private parties, and State has very limited role, however, looking to the order impugned, it seems that the respondent-Deputuy Collector, while passing the impugned order, has dealt with each and every apect of the matter, both on law as well as on facts, and as such, the same does not require any interference at the end of this Court.
11. Heard the learned counsel appearing for the respective Page 11 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined parties and perused the record.
12. For the purpose of deciding the issue at hand, it would be apt to take note of the following facts;
12.1 The issue involved relates to the right of way to access the lands owned by the writ applicants, which the writ applicants and their ancestors claimed to have been using since decades, and the said way passes through the eastern and southern periphery of the land owned by the private respondents.
12.2 However, as the private respondents claimed to have created obstructions in the said way of the writ applicants to reach to their field, the writ applicants initiated proceedings before the Mamlatdar under Section 5 of the Mamlatdar's Court Act for removal of such alleged illegal obstruction and for restraining the private respondents from disturbing the right of way of the writ applicants.
12.3 The said suit was allowed by the Mamlatdar and the private respondents were directed to remove the alleged obstructions, however, being aggrieved with the said order, the private respondents filed revision before the Deputy Colletor, who overturned the decision of the Mamlatdar and quashed and set aside the order passed by the Mamlatdar.
12.4 During the proceedings before the Deputy Collector, the respondent No.6, who first filed an affidavit in favour of the writ applicants during the proceedings before the Mamlatdar, had took a completely contrary stand before the Deputy Page 12 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined Collector and filed an affidavit against the writ applicants, disclosing therein for the first time about the initiation of the civil proceedings by the ancestors of the writ applicants in the year 1993. However, subsequently, the said respondent No.6 again filed an affidavit in favour of the writ applicants, denying his second affidavit.
12.5 The Deputy Colector, after hearing the parties and taking into consideartion the entire materials placed before it, as well as keeping in mind the fact of initiation of civil proceedings, allowed the revision application of the private respondents and quashed and set aside the order of the Mamlatdar, further directing the parties to approach the competent Civil Court for the purpose of seeking any relief.
13. The learned counsel appearing for the writ applicants has three-fold submissions to canvass before this Court. First, according to him, the suit filed by the writ applicants before the Mamlatdar was maintainable as the cause of action involved therein was altogether different and distinct from that of agitated before the Civl Court way back in the year 1993; secondly, as per Sections 5 and 22 of the Mamlatdar's Court Act, the Mamlatdar can exercise power under Section 5 of the said Act in case any right of way is violated and further it also provides that the exercise of such powers and adjudication done by the Mamlatdar will remain in force until otherwise orderd, decreed or ousted by a competent civil court; and thirdly, according to the learned counsel the fresh suit filed by the writ applicants could not be said to be hit by the doctrine of res judicata.
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14. On the other hand, the learned counsel appearing for the private respondents has made the submissions to the effect that no error not to speak of any error of law could be said to have been committed by the Deputy Collector in passing the impugned order. He has submitted that the Deputy Collector is right in taking the view that the Mamlatdar lacks jurisdiction in entertaining the suit filed by the writ applicants when civil litigation had already been ensued on the same set of facts as per Order IX Rule 8. As further contended by the counsel for the respondents, the suit before the Mamlatdar aslso barred by Section 26 of the Mamlatdar's Court Act.
15. Now, the only question that falls for the consideration is whether the second suit is barred by Order IX Rule VIII of CPC after dismissal of the suit for default on the same cause of action by the Civil Court?
16. To give answer to the aforesaid question, it would be apt to refer to the provisions of Order IX Rule VIII, which is as follows;
"8. Procedure where defendant only appears-- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
17. Order IX Rule 9 of the C.P.C. reads thus:
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appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. And shall appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
18. The plain reading of Order IX Rule 9 of the C.P.C., referred to above, states that where a suit is dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The aforesaid provisions are cystal clear that if the suit is dismissed under Rule 8 of Order IX of the C.P.C., the plaintiff cannot bring a fresh suit on the same cause of action. The only remedy available to the plaintiff is to move an application for setting aside the order of dismissal and for restoration of suit.
19. Order IX Rule III CPC readas as under;
"3. Where neither party appears, suit to be dismissed.
Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed."
20. Order IX Rule IV CPC reads as under;
"ORDER IX -Appearance of parties and consequence of non-appearance Page 15 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined
4. Plaintiff may bring fresh suit or Court may restore suit to file.- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
21. From bare reading of the aforesaid two provisions i.e. Rule 4 and Rule 9 of Order IX of the C.P.C., it is manifestly clear that under Rule 4 of Order IX of the C.P.C., the legislature in express term has not precluded the plaintiff from filing a fresh suit on the same cause of action in the event suit is dismissed under Rule 2 or Rule 3 of Order IX of the C.P.C., whereas Rule 9 of Order IX debars the plaintiff from filing a fresh suit in a case where the suit is dismissed under Rule 8 of Order IX of the C.P.C. The only remedy provided for such dismissal is to file an application under Rule 9 of Order IX of the C.P.C. for restoration of suit.
22. At this stage, I may also refer to the provisions of Section 26 of the Mamlatdar's Court Act, which reads as under;
"26. Bar of certain suits.--
No suit shall lie under this Act,--
(a)against Government or against any Government Officer in respect of any act done or purporting to be done by any such officer in his official capacity, except where acting as a manager or guardian duly constituted under any law for the time being in force; or
(b)in respect of any removal of any impediment or of any dispossession, recovery of possession or disturbance of Page 16 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court or under Chapter XII of the Code of Criminal Procedure, 1898."
23. In Suraj Rattan Thirani Versus Azamabad Tea Company Limited, 1964 (6) SCR 192, it has been held as under;
"30. We consider that the test adopted by the Judicial Committee for determining the identity of the cause of action in the two suits in Mohammed Khalil Khan and Ors. v.Mahbub Ali Mian and Ors. (1) is sound and expresses correctly the proper interpretation of the provision.
"In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression `same cause of action` which occurs in a similar context in para (1) of O. 11 r. 2 of the Civil Procedure Code, observed: `In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is: are the causes of action in the two suits in substance-not technically identical-"
31. The learned Judge thereafter referred to an earlier decision of the Privy council in Soorijamonee Dasee V/s. Suddanund and extracted the following passage as laying down the approach to the question : `Their Lordships are of opinion that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action...........`. Applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits. The property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same facts viz., the position of Md. Ismail quoad his co-heirs and the benecial interests of the latter not being affected or involved in the mortgages, the mortgage-decree and the sale in execution thereof. No doubt, the plaintiff set up his purchases as the source of Page 17 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined his title to sue, but if as we have held the bar under O. IX. r. 9 applies equally to the plaintiff in the rst suit and those claiming under him, the allegations regarding the transmission of title to the plaintiffs in the present suit ceases to be material. The only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession. Their addition, however, does not wipe out the identity otherwise of the cause of action. It would, of course, have made a difference if, without reference to the antecedent want of fun title in Ismail which was common to the case set up in the two plaints in Suit 58 of 1931 and Suit 18 of 1943, the plaintiffs could, on the strength of the possession and dispossession or the possessory title that they alleged, have obtained any relief. It is, however, admitted that without alleging and proving want of full title in Md. Ismail the plaintiffs could be granted no relief in their present suit. The question is whether the further allegations about possession in October, 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits. This can be answered only in the negative. The learned Judges of the High court therefore correctly held that the suit was substantially barred by O. IX. r. 9."
24. In Mayandi Versus Pandarachamy, 2021 (20) SCC 585, in a very short and precise decision, it has been held and observed as under;
"1. Leave granted.
2. The judgment and decree passed by the High Court is liable to be set aside on the short and singular ground that in the previous suit i.e. Original Suit No.85/1996 a similar relief was prayed by Pechimuthu S/o. Arumgasamy Thevar, Minor Manimegalai D/o. Pechimuthu, Thilagavathi (Minor) D/o. Pechimuthu and Arul Pandian (Minor) D/o. Pechimuthu. Prayer was made for declaration of title and for permanent injunction on the basis of Will dated 05.12.2004 executed by Sadaiyappa Konar which became operative on his death on 20.02.1995. O.S. No.85 of 1996 was led in which Page 18 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined following prayer was made:-
A. declaring the plaintiffs 2 to 4 is title to the plaint 1st schedule property.
B. granting the consequential relief of permanent prohibitary injunction restraining the defendants from disturbing the plaintiffs title, possession and enjoyment of the plaint 1st schedule property.
C. granting permanent prohibitary injunction restraining the defendants from sub letting the 2nd schedule house without the written permission of the plaintiff.
D. awarding the costs of this suit to the plaintiffs.
3. It was on the basis of the Will, Civil Suit No.85/1996 was led. It was dismissed vide order dated 16.03.2001, when the counsel for the plaintiffs was absent and the counsel for the defendants was present in the Court.
4. Plaintiff Nos.2, 3 and 4 led the second suit i.e. Suit No.1106/2004 against the defendants. The prayer was made for permanent injunction on the basis of the Will only. After ling of the suit, Respondent No.1 purchased the property from the original plaintiffs.
5. The High has decreed the suit of the plaintiffs by the impugned judgment and decree, while allowing the second appeal.
6. After hearing learned counsel for the parties, it is apparent from the order of dismissal of the prior suit that it was dismissed under the provisions of Order IX Rule 8 of the CPC as the counsel for defendants was present and counsel for the plaintiffs was absent. In view of the provisions contained in Order IX Rule 9 decree against plaintiffs by default bars fresh suit. Order IX Rule 9 is extracted hereunder:-
9. Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed under rule Page 19 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025 NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satises the Court that there was sucient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks t, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
7. In view of the aforesaid, High Court erred in law in holding that the subsequent suit was based on different cause of action, as such it was maintainable. The impugned judgment and order is patently illegal. Thus, it is set aside and the suit is ordered to be dismissed as it was not maintainable. The purchaser is sailing in the same boat as that of the original plaintiffs, he cannot be said to be having better rights than the original plaintiffs.
8. The appeal is, accordingly, allowed.
9. Pending application(s), if any, shall stand disposed of."
25. From the arguments canvassed, averments made, materials placed on record in the light of the tenets of law and the relevant provisions of the statute, as cited above, it appears that the fact of initiation of civil proceedings came on surface during the proceedings before the Deputy Collector, and the Deputy Collector, in its wisdom, after taking into consideration the said fact keeping in mind the relevant provisions of law, allowed the revision and quashed the order of the Mamlatdar, which in the opinion of this Court, has rightly been done. Even otherwise, if the said fact of initiation of civil proceedings was brought to the notice of the Mamlatdar, then the outcome of the said proceedings might have been different.
Page 20 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025NEUTRAL CITATION C/SCA/26834/2022 ORDER DATED: 02/12/2025 undefined
26. In view of the aforesaid, I see no good ground to interfere with the impugned order dated 21.02.2022 passed by the Deputy Collector in Revision Application No.15 of 2021.
27. In the result, this writ application fails and is hereby dismissed. Notice stands discharged.
(DIVYESH A. JOSHI,J) VAHID Page 21 of 21 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 23:04:46 IST 2025