Punjab-Haryana High Court
Anand Dev And Another vs Suraj Bhan on 5 January, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No.4352 of 2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No.4352 of 2010
Date of decision : January 05, 2012
Anand Dev and another
....Appellants
versus
Suraj Bhan
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. J.R. Mittal, Senior Advocate with
Mr. Kashmir Singh, Advocate, for the appellants
L.N. Mittal, J. (Oral)
Plaintiffs Anand Dev and Pawan Kumar who were successful in the trial court but have been non-suited by the lower appellate court have filed the instant second appeal.
Plaintiffs alleged that they are owners of the suit land which is part of khasra no. 358 but the defendant-respondent Suraj Bhan illegally occupied the same and raised construction thereon. Accordingly, the plaintiffs sought possession of the suit land by demolition of construction raised by the defendant.
The defendant denied the plaint averments and pleaded that Regular Second Appeal No.4352 of 2010 -2- defendant is owner in possession of the suit land. It was alleged that defendant's father had installed diesel engine for running a factory about 50 years back and also obtained electric connection to run the said unit. The defendant being owner in possession of the suit land raised construction in it. It was also pleaded that the suit is barred by Order 23 Rule 1 of the Code of Civil Procedure (in short, CPC) because plaintiffs had withdrawn their previous suit for possession of the suit land unconditionally. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 27.7.2007 decreed the plaintiffs' suit for possession of the suit land along with mesne profits. However, first appeal preferred by defendant has been allowed by learned Additional District Judge, Hisar vide judgment and decree dated 17.5.2010 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, the plaintiffs have filed the instant second appeal.
I have heard learned counsel for the appellants and perused the case file.
Only question that needs adjudication in the instant second appeal is whether the suit is barred by Order 23 Rule 1(4) CPC. Facts in the case are not in dispute. Plaintiffs had earlier filed civil suit No. 710 of 1991 which was dismissed as withdrawn on 6.1.1992. The said suit was also for possession of the suit land. The instant suit was instituted on Regular Second Appeal No.4352 of 2010 -3- 28.7.1999 alleging that the earlier suit was withdrawn on the basis of compromise got effected by brotherhood Panchayat whereby defendant had to remove encroachment from the suit land within one year and had to hand over possession of the suit land to the plaintiffs, but the defendant failed to do so, necessitating the filing of the instant second suit.
As noticed hereinbefore, the previous suit by the plaintiffs for the same relief was dismissed as withdrawn unconditionally. At the time of withdrawal of the said previous suit, the plaintiffs neither alleged any such compromise effected in brotherhood Panchayat nor sought permission to file fresh suit regarding same subject matter. Consequently, the instant second suit is clearly barred by Order 23 Rule 1(4) CPC. There cannot be any two opinions about it. The case is as clear as broad day light. The previous suit was withdrawn unconditionally and consequently second suit is clearly barred. This view gets further support from judgment of this Court in the case of Diwan Chand vs. Sardari Lal & Anr., 2009(3) Civil Court Cases 453 and judgment of Supreme Court in the case of R. Rathinavel Chettiar and another vs. V. Sivaraman and others, 1999(2) PLR 459.
Counsel for the appellants vehemently contended that there accrued fresh cause of action in favour of the plaintiffs for filing the instant second suit because the defendant pursuant to compromise effected in brotherhood Panchayat failed to deliver possession of the suit land to the Regular Second Appeal No.4352 of 2010 -4- plaintiffs. The contention is completely misconceived and meritless. No such compromise was asserted while withdrawing the previous suit nor permission of the court was sought to file fresh suit, if need be. Secondly, the alleged compromise has also not been proved. If there had been any such compromise, the plaintiff would have filed the second suit immediately after one year of withdrawal of the previous suit when the defendant according to alleged compromise failed to deliver vacant possession of the suit land to the plaintiffs within one year. However, the plaintiffs filed the instant suit 7½ years after withdrawing the previous suit. If there had been any such compromise, the plaintiffs would not have waited for 6½ years after expiry of stipulated period of one year during which the defendant was to surrender the possession of the suit land to the plaintiffs pursuant to alleged compromise. It is, thus, manifest that there was no such compromise. However, even if it is assumed for the sake of argument only that there was any such compromise, even then the instant second suit would be barred because no such compromise was asserted while withdrawing the previous suit nor leave of the court was sought to file fresh suit.
Lower appellate court has rightly held the instant second suit to be barred by Order 23 Rule 1(4) CPC. There is no infirmity in the said finding of the lower appellate court. No question of law much less substantial question of law arises for adjudication in the instant second Regular Second Appeal No.4352 of 2010 -5- appeal because on the basis of admitted facts, the suit is manifestly barred by Order 23 Rule 1(4) CPC. The instant second appeal is meritless and is accordingly dismissed in limine.
( L.N. Mittal )
January 05, 2012 Judge
'dalbir'