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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.14 OF 2001
Ashruba s/o Haribhau Dombe,
age: 40 years, Occ: Agri.,
R/o Kanad, Tq.Selu,
District Parbhani. Appellant
Versus
Ramkishan s/o Yashwantrao Dombe,
age: 61 years, Occ: Agri.,
R/o Kanad, Tq.Selu,
District Parbhani. Respondent
Mr.B.R.Warma, advocate for the appellant.
Mr.N.C.Garud, advocate holding for Mr.A.P.Basarkar,
advocate for the Respondent.
ig CORAM :
Reserved on :
Pronounced on:
R.M.BORDE, J.
11.06.2008.
04.07.2008.
ORAL JUDGMENT:
JUDGMENT
1. This is an appeal by original defendant
challenging the concurrent judgments recorded by the
Courts below.
2. Plaintiff – Respondent herein instituted
Regular Civil Suit No.181/89 claiming redemption of
mortgage and recovery of possession as well as
reconveyance of the document. Plaintiff is the
original owner of the property bearing S.No.19/2 and
19/11, now consolidated in G.No.407, admeasuring 25
ares and 32 ares respectively situate at village
Kanad. Plaintiff was in need of Rs.5000/-. As such,
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he approached the defendant for advancement of
amount. Defendant agreed to advance the amount,
however, on execution of a conditional registered
sale deed by the plaintiff in his favour. Plaintiff,
as such, executed a conditional sale deed and it was
agreed that after completion of five years, plaintiff
would pay Rs.5000/- to the defendant and defendant
would reconvey the property in favour of the
plaintiff. Plaintiff contends that he had paid an
amount of Rs.3175/- to the brother of the defendant
and presented Regular Civil Suit No.94/86 against the
defendant for reconveyance. But the said suit was
withdrawn
as it was premature. Plaintiff was ready
to pay Rs.5000/- to the defendant and asked the
defendant to reconvey the property. However,
defendant refused to do so. Hence plaintiff
instituted instant suit requesting the defendant for
redemption of mortgage as well as for execution of
reconveyance deed and delivery of the property in
favour of the plaintiff.
3. In response to the suit summons, defendant
appeared and resisted the suit. Defendant admitted
execution of the document dated 04.05.1983. However,
he contended that period prescribed under the
document came to an end on 04.05.1988. Thereafter
defendant asked the plaintiff to pay back the amount
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and get the reconveyance deed executed. However,
plaintiff was not in a position to repay the amount.
It is, therefore, contended that in view of the terms
recorded in the said document, conditional sale has
to be treated as absolute one on expiration of the
period prescribed in the document. Defendant, as
such, prayed for dismissal of the suit.
4. The trial Court, after considering pleadings
of the parties, framed as many as four issues and
after receiving evidence led by the parties, came to
the conclusion that plaintiff has established his
case and as
such granted decree in favour of the
plaintiff by judgment and decree dated 21.01.1993.
The trial Court recorded a finding that the plaintiff
has proved that the defendant has refused to deliver
the property in his favour so also the trial Court
has recorded a finding in affirmative in respect of
the issue, as to “whether the plaintiff was and is
ready and willing to perform his part of the
contract”. The trial Court also recorded a finding
that the plaintiff is entitled to redemption as
claimed and as such decreed the suit.
5. Defendant, being aggrieved by the judgment
and decree passed by the trial Court, preferred
Regular Civil Appeal No.12/1993 which came to be
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heard and disposed of by the Additional District
Judge, Parbhani, who was pleased to dismiss the same
by his judgment and decree dated 04.12.2000. The
only point canvassed before the first appellate Court
was regarding drawing of a preliminary decree in
respect of redemption of mortgage.
6. It was urged by the appellant before the
first appellate Court that the trial Court should
have passed a preliminary decree for redemption of
mortgage and the decree passed by the trial Court
does not confirm to characteristics of preliminary
decree for
redemption. The only request that was
made before the first appellate Court by the
appellant was to remit the matter back to the trial
Court for passing appropriate preliminary decree.
The first appellate Court found favour with the
appellant. However, in view of the powers invested
with first appellate Court, the Court passed
appropriate preliminary decree by allowing the appeal
partly. Defendant has challenged concurrent
judgments recorded by the Courts below by presenting
instant Second Appeal.
7. The appeal came to be admitted for
consideration of Grounds No.I to IV set out in the
memorandum of appeal, those are:
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(I) When a suit bearing R.C.S.No.94/1986 was
filed by the plaintiff/Respondent in the
Court of Civil Judge, Junior Division,
Jintur, for recovery of possession of the
same suit land on 22.08.1986, and said Civil
Suit was withdrawn by an application
Exhibit-24 and by order dated 31.12.1987
without obtaining leave to institute another
suit, therefore, the present proceedings i.e.
R.C.S. No.181/1989 is barred by Order 23
Rule 1 of the Civil Procedure Code.
(II) When second suit for same relief is barred by
provisions of Order 23, then it is to be
considered as res judicata. This substantial
question of law have not been considered by
the Courts below in spite of the fact that, a
specific ground was taken before the lower
appellate Court.
(III) The plaintiff/Respondent had also filed
R.C.S. No.42/1988 for recovery of the amount
of Rs.3175/- against the real brother of the
appellant in respect of price of the same
land and transaction as involved in present
proceedings. The said Civil Suit No.42/1988
is dismissed then second suit i.e.
proceedings can not be instituted and ought
to have been dismissed.
(IV) When the suit was withdrawn without
permission to file fresh suit for the same
relief as involved in the present
proceedings, then Court below ought to have
considered hurdle of Order 23 and principle
of res judicata on the basis of peculiar
facts and circumstances of the case. Non
consideration of the legal points as stated
above resulted into miscarriage of justice
and perversity.
8. The only point that was urged by the
appellant is regarding maintainability of the instant
suit presented by plaintiff being R.C.S. No.181/89
in view of withdrawal of previous suit being R.C.S.
No.94/86. It is strenuously contended by the
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appellant that earlier suit being R.C.S. No.94/86
was presented by the plaintiff against defendant
seeking possession of the property which is subject
matter of the instant suit as well as for a
declaration that the sale deed executed on 04.05.1983
in favour of the defendant be declared as nominal and
same be cancelled. According to the
defendant/appellant, in the instant suit also i.e.
R.C.S. No.181/89, relief is claimed in respect of
recovery of possession of the suit property as well
as for redemption of mortgage. Learned Counsel for
the appellant contends that R.C.S. No.94/86 was
withdrawn
unconditionally by the plaintiff and an
order to that effect came to be passed below
Exhibit-24, which was an application tendered by the
plaintiff seeking withdrawal of the suit. Suit came
to be withdrawn unconditionally as such, according to
the appellant, in view of provisions of Order XXIII
Rule 1 of the Code of Civil Procedure, instant suit
is not maintainable.
9. It would be appropriate to refer to the
provisions of Order XXIII Rule 1 of the Code of Civil
Procedure, which reads as below:
1. Withdrawal of suit or abandonment
of part of claim –
(1) At any time after the institution
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of a suit, the plaintiff may, as against
all or any of the defendants, abandon his
suit or abandon a part of his claim;
. Provided that where the plaintiff
is a minor or other person to whom the
provisions contained in rules 1 to 14 of
Order XXXII extend, neither the suit nor
any part of the claim shall be abandoned
without the leave of the Court.
(2) An application for leave under the
proviso to sub-rule (1) shall be
accompanied by an affidavit of the next
friend and also, if the minor or such
other person is represented by a pleader,
by a certificate of the pleader to the
effect that the abandonment proposed is,
in his opinion, for the benefit of the
minor or such other person.
(3) Where the Court is satisfied,-
(a).
that a suit must fail by
of some formal defect, or
reason
(b). that there are sufficient grounds
for allowing the plaintiff to institute a
fresh suit for the subject matter of a
suit or part of a claim, it may, on such
terms as it thinks fit, grant the
plaintiff permission to withdraw from
such suit or such part of the claim with
liberty to institute a fresh suit in
respect of the subject matter of such
suit or such part of the claim.
(4) Where the plaintiff-
(a). abandons any suit or part of
claim under sub-rule (1), or
(b). withdraws from a suit or part of
a claim without the permission referred
to in sub rule (3), he shall be liable
for such costs as to the Court may award
and shall be precluded from instituting
any fresh suit in respect of such subject
matter or such part of the claim.
(5) Nothing in this rule shall be
deemed to authorise the Court to permit
one of several plaintiffs to abandon a
suit or part of a claim under sub-rule
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(1), or to withdraw, under sub-rule (3),
any suit or part of a claim, without the
consent of the other plaintiffs.
. In view of sub-rule (4) of Rule 1, Order
XXIII C.P.C., where the plaintiff withdrew from a
suit or part of the claim without the permission
referred to in sub-rule (3), he is precluded from
instituting any fresh suit in respect of such subject
matter or such part of the claim. It has to be,
therefore, determined as to what was the nature of
the suit previously instituted and the instant suit.
10.
case of
A
Thota
reference is made to two judgments in
China Subba Rao and others
the
Vs.
Mattapalli Raju and others,
others reported in AIR 1950
Federal Court page 1; and in the case Vishwa Nath
Vs. Shakti Ram and others,
others reported in AIR 1987
Himachal Pradesh, page 29, wherein it has been laid
down that dismissal of earlier suit for redemption,
whether abated or withdrawn or in default would not
debar the mortgagor from filing a second suit for
redemption and that such second suit and for that
matter every successive suit for redemption to redeem
the same mortgage can be brought so long as the
mortgage subsists and the right of redemption is not
extinguished by efflux of time or by a decree of the
Court passed in the prescribed form. There can be no
second opinion in respect of the proposition
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advanced.
11. If we peruse the document, which is the
foundation for institution of the suit, i.e.
unconditional sale deed at Exhibit-44, it would be
evident that the said document has been executed by
the plaintiff in favour of defendant on 04.05.1983
thereby transferring the suit property in favour of
defendant for consideration of Rs.5000/- for a period
of five years. It is specifically mentioned in the
document that the property has been transferred for a
period of five years i.e. from 04.05.1983 to
03.05.1988 and the property was supposed to remain in
possession of the defendant during such period. The
defendant has agreed to reconvey the property after
accepting the amount of Rs.5000/- after expiration of
the period. It is thus clear that the period covered
by the deed Exhibit-44 was to come to an end on
03.05.1988. However, plaintiff instituted Regular
Civil Suit No.94/86 in the Court of Civil Judge,
Junior Division, Jintur on 22.08.1986. Relief
claimed in the suit was in respect of handing over of
possession to the plaintiff as well as for a
declaration that the sale deed dated 04.05.1983 is
nominal one and for cancellation of the same. The
suit was obviously instituted prior to completion of
the period of five years, as stipulated in the deed
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Exhibit-44. The cause of action for presentation of
the suit, as mentioned in paragraph 5 of the plaint,
is 31.07.1986. The plaintiff, in the said suit, did
not claim redemption of the mortgage. Obviously,
earlier suit being R.C.S. No.94/86 was founded on
the cause of action in respect of alleged refusal by
the defendant to hand over possession on 31.07.1986.
Moreover, the distinguishing feature is that
plaintiff did not ask for redemption of mortgage and
he could not have asked, as the period covered by the
deed was yet to come to an end. Obviously,
therefore, after an objection was raised by the
defendant
in respect of maintainability of the suit,
plaintiff presented an application Exhibit-24 seeking
withdrawal of the suit and the Court permitted
plaintiff to withdraw the suit. Withdrawal of the
earlier suit was unconditional.
12. If we peruse the plaint in instant suit i.e.
R.C.S. No.181/89, suit is filed for redemption of
mortgage as well as for recovery of possession of the
property. It is specifically stated in the plaint
that the period prescribed under the registered
conditional sale deed dated 04.05.1983 has come to an
end and after completion of period of five years,
plaintiff has got a right to redeem the mortgage and
recover the possession. The date of cause of action,
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stated in the plaint, is 18.06.1989, when the
defendant refused to redeem the mortgage after
accepting the amount and further refused to deliver
possession of the property. On perusal of the
pleadings in both the suits, it is evident that both
the suits are founded on different causes of action
and are filed in totally different set of
circumstances. The earlier suit i.e. R.C.S.
No.94/86 was restricted to claim in respect of
possession. However, no relief in respect of
redemption of mortgage was claimed. The plaintiff
could not have asked for redemption of mortgage as
the period
prescribed under the deed of 04.05.1983
was yet to come to an end.
13. Considering the pleadings raised in both the
suits as well as causes of action stated, it is quite
clear that both the suits cannot be said to be in
respect of a common “subject matter”. Therefore, bar
prescribed by sub-rule (4) Rule 1, Order XXIII of the
Code of Civil Procedure, obviously will not be
attracted.
14. It would be appropriate to refer to a
decision rendered by the Apex Court in the matter of
Vallabh Das Vs. Dr.Madanlal and others,
others reported in
AIR 1970 SC 987, wherein the Apex Court has explained
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the meaning of a phrase “same subject matter”
appearing in Order XXIII Rule 1 of the Code of Civil
Procedure. It has been observed thus:
. “Subject-matter” in Order 23,
Rule 1 means the bundle of facts which
have to be proved in order to entitle the
plaintiff to the relief claimed by him.
Where the cause of action and the relief
claimed in the second suit are not the
same as the cause of action and the
relief claimed in the first suit, the
second suit cannot be considered to have
been brought in respect of the same
subject matter as the first suit. AIR
1917 Bom 10(1) & AIR 1917 Mad 512 (2)
(FB), Rel. on.
. Mere identity of some of the
issues in the two suits do not bring
about an identity of the subject-matter
in the two suits.
15. It would also serve useful purpose in
referring to the decision of the Calcutta High Court
in the case of A. J. Judah Vs. Ramapada Gupta,
Gupta
reported in AIR 1959 Calcutta 715. While dealing
with identical question, Learned Single Judge of
Calcutta High Court has observed thus:
. “If the cause of action which
gave rise to the reliefs claimed in the
subsequent suit did not arise when the
previous suit was instituted and
withdrawn in the sense that one important
event absolutely essential to complete
the cause of action in the subsequent
suit did not take place, then the subject
matter of the two suits must be different
and Order 23 Rule 1(3) has no
application.”
. On perusal of the plaints in both the suits
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i.e. previously instituted suit and instant suit, it
is observed that, on comparison of the pleadings in
two suits, it appears that the relief claimed and the
facts narrated constituting the cause of action are
not identical. For determination of the question,
one has to look to the substance of the two suits and
not to their form and language only. The
subject-matter of a suit can only be ascertained from
the plaint filed. The addition of a new fact to a
set of existing facts may change the character of the
suit and the right to relief.
16. If we
ig peruse the plaint in the previously
instituted suit, it would be evident that the earlier
suit was presented before completion of the period
prescribed under the deed Exhibit-44. No relief in
respect of redemption of mortgage was claimed in the
earlier suit. The suit was founded on a different
cause of action. However, in the instant suit i.e.
suit instituted at subsequent stage, relief in
respect of redemption of mortgage is claimed. So
also, the suit is instituted after completion of
period prescribed under the document Exhibit-44. In
this view of the matter, the “subject matter”, as has
been explained by the Apex Court in the matter of
Vallabh Das (supra), cannot be said to be identical.
Therefore, the bar, as contended by the appellant, in
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view of the provisions of Rule 1, Order XXIII of Code
of Civil Procedure, cannot be said to have been
attracted.
17. Learned Counsel for the appellant has placed
reliance on the judgment in the case of Murlidhar
Khunteta Vs. Bhooramal,
Bhooramal reported in 1978 Rajasthan
191. Said matter is in respect of suit for eviction
under the provisions of Rajasthan Premises (Control
of Rent & Eviction) Act, 1950. It has been observed
in the reported matter that the cause of action,
which is the foundation of both the suits, was one
and the same and, therefore, subsequent suit was held
to be barred under the provisions of Order XXIII Rule
1 of the C.P.C.
. Similar is the case in respect of judgment in
the case of Papinayakanahalli Venkanna and others Vs.
Janadri Venkanna Setty (by L.Rs.),
L.Rs.) reported in AIR
1985 Karnataka 166. The reported matter is under the
provisions of Karnataka Rent Control Rules and lays
down an identical principle.
. Learned Counsel for the appellant has also
placed reliance on the judgment in the case of Order
of the Holy Cross Vs. Lonnappan Thattil,
Thattil reported in
AIR 1990 Kerala 215.
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18. For the reasons recorded above, the
judgments, on which reliance is sought to be placed
by the appellant, are of little help and cannot be
strictly made applicable to the facts of the instant
case.
19. It is observed that the point raised in the
Second Appeal was not raised before both the Courts
below. Although the memorandum of appeal presented
to the first appellate Court does make a reference
cursorily to the objection, however, ground no.8
raised in the
ig memorandum of appeal also do not
specifically lay foundation for consideration of the
objection. However, the question advanced, being a
question relating to bar for instituting the suit
itself, as provided under Order XXIII Rule 1, this
Court thought it appropriate to admit the appeal by
formulating such question and the same has been dealt
with in this appeal for the first time.
20. For the reasons set out above, I do not find
that the argument advanced by the appellant in
support of the objection raised is acceptable. There
is no merit in the Second Appeal and same deserves to
be dismissed.
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21. Appeal is, therefore, dismissed. In the
facts and circumstances of the case, there shall be
no order as to costs. Pending Civil Applications, if
any, stand disposed of.
22. A Request is made by learned Counsel for the
appellant that during pendency of the second appeal,
execution and operation of the judgment and decree
passed by the trial Court and confirmed in appeal by
the first appellate Court was directed to be stayed
by this Court. It is stated that appellant is in
possession of the property and his possession be
protected for
ig further period of eight weeks.
Appellant has expressed willingness to file an
undertaking that on expiration of such period, he
would vacate his possession.
23. In this view of the matter, it would be
desirable to continue interim stay to the execution
and operation of judgment and decree passed by the
trial Court which has been modified by the first
appellate Court, for further period of eight weeks on
condition of appellant tendering an undertaking to
this Court that on expiration of such period of eight
weeks, he would vacate the possession and hand over
the same to the Respondent.
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(R.M.BORDE)
JUDGE
*******
bad/sa1401
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