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SA/170/2008 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 170 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SHARDABEN
DAMODARDAS PANDYA - Appellant(s)
Versus
MUKUNDKUMAR
DALSUKHRAM PANDYA - Defendant(s)
=========================================================
Appearance
:
MR
NC NAYAK for
Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 MS
JYOTSNA M AMIN for Appellant(s) : 1, 1.2.1, 1.2.3, 1.2.4, 1.2.5,
1.2.6,1.2.7
MR PRABHAKAR UPADYAY for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 16/10/2008
ORAL
JUDGMENT
The
appellants original plaintiffs have filed the Second Appeal u/s.100
of the Code of Civil Procedure, challenging the order passed by the
learned Presiding Officer, Fast Track Court No.2, Kalol- Gandhingar
in Regular Civil Appeal No.51 of 1997 on 17th November,
2006, by which the judgment and decree of the 2nd Joint
Civil Judge (J.D.) at Kalol passed in Regular Civil Suit No.171 of
1990 is confirmed. This Court has issued notice on 04.09.2008. On
issuance of notice, Mr. Prabhakar Upadyay, learned advocate has filed
his appearance on behalf of the respondent/original defendant.
It
is the case of the appellants that the appellants/plaintiffs filed
suit being RCS No.171/90 for declaration to the effect that the
defendant has no right to enter into the suit land bearing block Nos.
63/1, 63/2, 70 and 85/21 being ancestral land received by the
plaintiffs in their share through their late father and also from
creating any hindrances in their use and occupation thereof and for
permanent injunction in the same terms with respect to the said lands
in question situated and lying at village Mubarakpura, Tal. Kalol,
District Gandhinagar on the strength of different revenue entries
mutated from time to time.
Prior
to filing of Regular Civil Suit No.171 of 1990, the plaintiffs’ late
father had filed Civil Suit No.177 of 1989 which was withdrawn
seeking permission to file afresh suit which permission was granted
unconditionally by the learned Civil Judge. Though the plaintiffs
have asked for the liberty to file a fresh suit, the same was not
granted. Without challenging the said order the plaintiffs have filed
the present suit on the same subject matter and the learned Trial
Judge has dismissed the said suit on the ground that the suit was not
maintainable in view of the principle of Res Judicata. Being
aggrieved by the said decision, the appellants have filed Regular
Civil Appeal before the learned District Judge and the same also came
to be dismissed. While dismissing the said appeal, the learned
District Judge has specifically observed that it is clear and
undisputed fact that the plaintiffs have miserably failed to
establish their case under Order 23 of the Civil Procedure Code so
far as maintainability of the another suit on the principle of Res
Judicata is concerned, and also
under the provisions of Order 2 Rule 2 of the Civil Procedure Code.
The learned District Judge came to the conclusion that the impugned
order and judgment is in accordance with law and there is no
infirmity in the said order and judgment.
It
is this order which is under challenge in the second appeal.
Ms.
Jyotsna Amin, learned advocate appearing for the appellants has
submitted that the Courts below have grossly erred in arriving at the
conclusion that the suit is barred by the principle of Res
Judicata. She has
further submitted that the earlier suit was withdrawn by the
plaintiffs with a liberty to file a fresh suit. While granting such
permission to withdraw the suit, the learned Trial Judge has not
stated anything with regard to the permission sought for by the
plaintiffs to file a fresh suit. She has, therefore, submitted that
whether the principle of Res Judicata
is applicable especially when the earlier suit between the same
parties has not been decided on merits and no issues have been
determined is a substantial question of law. She has further
submitted that it cannot be said that fresh suit is barred especially
when in the earlier suit between the same parties, permission to
withdraw the suit was prayed for and the same was not rejected. In
support of her submission she relied on the decision of the Calcutta
High Court in case of Sukumar Banerjee v. Dilip Kumar Sarkar
and Ors. reported in AIR 1982 Calcutta 17, the decision of the
Allahabad High Court in case of Bharat & Ors. v. Ram Pratap
and Ors., reported in AIR 1985 Allahabad 61, the
decision of Allahabad High Court in case of Jai Prakash v.
Rajendra Prasad & Ors. reported in AIR 2007 Allahabad 112
and decision of this
Court in case of Kantibhai D. Patel through Power of Attorney
Holder Yogeshkumar K. Patel v. Ahmedabad Municipal Corporation
reported in 1998(1) G.L.R.183; and submitted that the fresh suit
filed by the plaintiffs is not barred by the principle of Res
Judicata and hence on the basis
of the principles laid down in the aforesaid judgments, the
substantial question of law proposed by the appellants is required to
be framed by the Court.
Mr.
Prabhakar Upadyay, learned advocate appearing for the respondent, on
the other hand, has submitted that since no permission has been
granted by the trial Court while allowing the plaintiffs to withdraw
the earlier suit, fresh suit is not maintainable and both the Courts
below have, therefore, rightly held that the suit is barred by the
principle of Res Judicata. In support of his submission, he
relied on the decision of this Court in case of Narayan Jethanand,
since deceased by his heirs & legal representatives v. Asapuri
Vijay Saw Mill reported in
1995(1)G.L.H. 1147 and the decision of the Hon’ble
Supreme Court in case of Sarva Shramik Sanghatana (K.V) Mumbai v.
State of Maharashtra reported in AIR 2008 SC 946.
Having
heard the learned advocates appearing for the respective parties and
having gone through the orders passed by the Courts below and the
various authorities cited before the Court, this Court is of the view
that no substantial question of law arises out of the orders passed
by the Courts below. It is an admitted position that the earlier
order passed by the trial Court whereby the plaintiffs were permitted
to withdraw their suit unconditionally has become final, and the said
order has not been challenged by the present appellants before the
higher authorities. It is also an admitted position that the
plaintiffs have sought the permission to file a fresh suit. However,
the said permission was not granted. Though it is not specifically
rejected, no reference was made with regard to the permission sought
for by the plaintiffs while withdrawing the earlier suit. It is,
therefore, considered that no permission was granted by the Court.
Despite this, the plaintiffs have filed fresh suit on the same
subject matter and between the same parties. The plaintiffs’ suit is,
therefore, clearly hit by the principle of Res Judicata as the
position of law is very clear on this subject. When the fresh suit is
filed on the same subject matter and between the same parties, it is
not maintainable unless the Court has granted specific permission to
file such suit. Here the cases relied upon by the learned advocate
appearing for the appellants are altogether on different points. In
those cases, the orders and judgments under challenge by the parties
are those orders where the permission was refused and those very
orders were under challenge. Here in the present case that earlier
order was not challenged by the plaintiffs. So far as the subsequent
suit is concerned, this Court has clearly taken the view in case of
Narayan Jethanand (supra)
that where the plaintiff withdraws the former suit without permission
of the Court, he is precluded from institution of a fresh suit in
respect of the same subject matter under Order 23, Rule 4 of the Code
and against the same defendant. This rule is mandatory. Therefore,
the plaintiff cannot thereafter institute a suit for enforcing what
was the subject matter of the former suit. The subject matter in the
former and subsequent suit was the same. The subject matter means
series of acts or transactions alleged to exist giving rise to the
relief claimed. Therefore, in such a situation, when the former suit
is withdrawn unconditionally or without any order granting leave to
withdraw the suit with liberty to bring fresh suit. In the
circumstances, would obviously operate a bar to a fresh suit, as
contemplated by the provisions of Order 23, Rule 4. There is no
reason, therefore, to interfere with the impugned judgment and decree
recorded by the trial Court. The Hon’ble Supreme Court in the case of
Sarva Shramik Sanghatana (K.V) Mumbai v. State of
Maharashtra (Supra) has taken a
view that ?SNo doubt, Order 23, Rule 1(4) of the Code of Civil
Procedure states that where the plaintiff withdraws a suit without
permission of the Court, he is precluded from instituting any fresh
suit in respect of the same subject matter.??
Considering
the aforesaid judgments of this Court as well as Hon’ble Supreme
Court as well as further considering the clear provisions of Order 23
of Civil Procedure Code, this Court is of the view that both the
Courts below have taken the correct view in the matter and no
substantial question of law arises in this second appeal. The appeal
is, therefore, dismissed. The interim order, if any, stands vacated.
Notice discharged.
[K.A.PUJ,J.]
jani
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