{"id":33743,"date":"2008-07-04T00:00:00","date_gmt":"2008-07-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashruba-vs-ramkishan-on-4-july-2008"},"modified":"2016-02-01T18:56:56","modified_gmt":"2016-02-01T13:26:56","slug":"ashruba-vs-ramkishan-on-4-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashruba-vs-ramkishan-on-4-july-2008","title":{"rendered":"Ashruba vs Ramkishan on 4 July, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ashruba vs Ramkishan on 4 July, 2008<\/div>\n
Bench: R. M. Borde<\/div>\n
                                       :1:\n\n              IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n                         BENCH AT AURANGABAD\n\n                           SECOND APPEAL NO.14 OF 2001\n\n     Ashruba s\/o Haribhau Dombe,\n     age: 40 years, Occ: Agri.,\n\n\n\n\n                                                                               \n     R\/o Kanad, Tq.Selu,\n     District Parbhani.                                         Appellant\n\n\n\n\n                                                      \n                Versus\n\n     Ramkishan s\/o Yashwantrao Dombe,\n     age: 61 years, Occ: Agri.,\n     R\/o Kanad, Tq.Selu,\n\n\n\n\n                                                     \n     District Parbhani.                                         Respondent\n\n\n     Mr.B.R.Warma, advocate for the appellant.\n     Mr.N.C.Garud, advocate holding for Mr.A.P.Basarkar,\n     advocate for the Respondent.\n\n\n\n\n                                        \n                            ig         CORAM :\n                                Reserved on :\n                                Pronounced on:\n                                                     R.M.BORDE, J.\n                                                     11.06.2008.\n                                                     04.07.2008.\n                          \n     ORAL JUDGMENT:\n          JUDGMENT\n<\/pre>\n
     1.         This       is   an    appeal    by   original            defendant<\/p>\n
     challenging          the concurrent judgments recorded by the<\/p>\n
     Courts below.\n<\/p>\n
     2.         Plaintiff        –    Respondent       herein        instituted<\/p>\n
     Regular        Civil Suit No.181\/89 claiming redemption                       of<\/p>\n
     mortgage       and     recovery     of    possession         as     well      as<\/p>\n
     reconveyance          of   the    document.       Plaintiff           is     the<\/p>\n
     original       owner of the property bearing S.No.19\/2 and<\/p>\n
     19\/11,     now consolidated in G.No.407, admeasuring                          25<\/p>\n
     ares     and     32    ares respectively situate               at     village<\/p>\n
     Kanad.     Plaintiff was in need of Rs.5000\/-.                      As such,<\/p>\n
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\n                                               :2:<\/span><\/p>\n
     he   approached              the        defendant        for       advancement            of<\/p>\n
     amount.          Defendant           agreed       to advance             the      amount,<\/p>\n
     however,         on        execution of a           conditional             registered<\/p>\n
     sale deed by the plaintiff in his favour.                                   Plaintiff,<\/p>\n
     as   such, executed a conditional sale deed and it was<\/p>\n
     agreed that after completion of five years, plaintiff<\/p>\n
     would      pay        Rs.5000\/- to the defendant and                          defendant<\/p>\n
     would       reconvey              the     property        in      favour        of       the<\/p>\n
     plaintiff.             Plaintiff          contends that he had paid                       an<\/p>\n
     amount      of Rs.3175\/- to the brother of the                                defendant<\/p>\n
     and presented Regular Civil Suit No.94\/86 against the<\/p>\n
     defendant         for        reconveyance.             But the said suit                 was<\/p>\n
     withdrawn<\/p>\n
                       as it was premature.                   Plaintiff was               ready<\/p>\n
     to   pay     Rs.5000\/-              to the defendant               and      asked        the<\/p>\n
     defendant             to     reconvey            the     property.              However,<\/p>\n
     defendant             refused        to     do         so.      Hence          plaintiff<\/p>\n
     instituted            instant suit requesting the defendant for<\/p>\n
     redemption            of     mortgage as well as for execution                            of<\/p>\n
     reconveyance               deed    and delivery of the                   property         in<\/p>\n
     favour of the plaintiff.\n<\/p>\n
     3.         In         response          to the suit summons,                  defendant<\/p>\n
     appeared         and resisted the suit.                      Defendant          admitted<\/p>\n
     execution of the document dated 04.05.1983.                                     However,<\/p>\n
     he   contended              that        period         prescribed          under         the<\/p>\n
     document         came        to an end on 04.05.1988.                       Thereafter<\/p>\n
     defendant         asked the plaintiff to pay back the amount<\/p>\n
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\n                                          :3:<\/span><\/p>\n
     and     get        the reconveyance deed           executed.            However,<\/p>\n
     plaintiff          was not in a position to repay the amount.\n<\/p>\n
     It is, therefore, contended that in view of the terms<\/p>\n
     recorded           in the said document, conditional sale                        has<\/p>\n
     to     be     treated as absolute one on expiration of                           the<\/p>\n
     period        prescribed         in the document.            Defendant,           as<\/p>\n
     such, prayed for dismissal of the suit.<\/p>\n
\n\n\n\n\n                                                         \n     4.           The        trial Court, after considering pleadings\n\n     of     the     parties, framed as many as four                     issues        and\n\n     after        receiving evidence led by the parties, came to\n\n\n\n\n                                             \n     the     conclusion          that plaintiff has            established            his\n\n     case     and        as\n                              \n                               such granted decree in favour                   of     the\n\n     plaintiff          by     judgment and decree dated                21.01.1993.\n                             \n<\/pre>\n
     The trial Court recorded a finding that the plaintiff<\/p>\n
     has     proved that the defendant has refused to deliver<\/p>\n
     the     property          in his favour so also the trial                    Court<\/p>\n
     has     recorded a finding in affirmative in respect                              of<\/p>\n
     the     issue,          as to “whether the plaintiff was and                      is<\/p>\n
     ready        and     willing      to     perform      his      part       of     the<\/p>\n
     contract”.              The trial Court also recorded a                   finding<\/p>\n
     that     the        plaintiff       is entitled       to     redemption           as<\/p>\n
     claimed and as such decreed the suit.\n<\/p>\n
     5.           Defendant,          being    aggrieved by the              judgment<\/p>\n
     and     decree          passed    by the     trial      Court,        preferred<\/p>\n
     Regular        Civil       Appeal      No.12\/1993 which came               to     be<\/p>\n
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\n                                              :4:<\/span><\/p>\n
     heard        and     disposed           of by the     Additional          District<\/p>\n
     Judge,        Parbhani, who was pleased to dismiss the same<\/p>\n
     by     his     judgment and decree dated                  04.12.2000.              The<\/p>\n
     only point canvassed before the first appellate Court<\/p>\n
     was     regarding           drawing       of a preliminary            decree        in<\/p>\n
     respect of redemption of mortgage.\n<\/p>\n
     6.           It      was        urged    by the appellant            before        the<\/p>\n
     first        appellate          Court that the trial             Court       should<\/p>\n
     have     passed           a preliminary decree for redemption                       of<\/p>\n
     mortgage           and     the decree passed by the                trial       Court<\/p>\n
     does     not        confirm to characteristics of                    preliminary<\/p>\n
     decree        for<\/p>\n
                              redemption.          The only request          that       was<\/p>\n
     made         before        the     first        appellate      Court        by     the<\/p>\n
     appellant           was to remit the matter back to the                        trial<\/p>\n
     Court        for     passing appropriate              preliminary           decree.\n<\/p>\n
     The     first        appellate          Court found       favour        with       the<\/p>\n
     appellant.               However, in view of the powers                   invested<\/p>\n
     with         first        appellate        Court,      the     Court         passed<\/p>\n
     appropriate preliminary decree by allowing the appeal<\/p>\n
     partly.             Defendant            has      challenged          concurrent<\/p>\n
     judgments           recorded by the Courts below by presenting<\/p>\n
     instant Second Appeal.\n<\/p>\n
     7.           The         appeal         came     to    be      admitted            for<\/p>\n
     consideration              of     Grounds No.I to IV set out in                    the<\/p>\n
     memorandum of appeal, those are:\n<\/p>\n
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\n                                    :5:<\/span><\/p>\n
     (I)       When a suit bearing R.C.S.No.94\/1986 was
\n               filed by the plaintiff\/Respondent in the
\n               Court   of Civil    Judge, Junior Division,
\n               Jintur, for recovery of possession of the
\n               same suit land on 22.08.1986, and said Civil<\/p>\n
               Suit   was   withdrawn by    an   application
\n               Exhibit-24 and by order dated 31.12.1987
\n               without obtaining leave to institute another<\/p>\n
               suit, therefore, the present proceedings i.e.
\n               R.C.S.   No.181\/1989 is barred by Order 23
\n               Rule 1 of the Civil Procedure Code.\n<\/p>\n
     (II)      When second suit for same relief is barred by<\/p>\n
               provisions of Order 23, then it is to be
\n               considered as res judicata. This substantial
\n               question of law have not been considered by
\n               the Courts below in spite of the fact that, a
\n               specific ground was taken before the lower
\n               appellate Court.\n<\/p>\n
     (III)     The plaintiff\/Respondent had     also   filed<\/p>\n
               R.C.S. No.42\/1988 for recovery of the amount
\n               of Rs.3175\/- against the real brother of the
\n               appellant in respect of price of the same
\n               land and transaction as involved in present<\/p>\n
               proceedings.   The said Civil Suit No.42\/1988
\n               is   dismissed   then    second   suit   i.e.
\n               proceedings can not be instituted and ought
\n               to have been dismissed.\n<\/p>\n
     (IV)      When   the   suit   was  withdrawn   without<\/p>\n
               permission to file fresh suit for the same
\n               relief   as   involved   in   the    present<\/p>\n
               proceedings, then Court below ought to have
\n               considered hurdle of Order 23 and principle
\n               of res judicata on the basis of peculiar
\n               facts and circumstances of the case.     Non
\n               consideration of the legal points as stated<\/p>\n
               above resulted into miscarriage of justice
\n               and perversity.\n<\/p>\n
     8.        The        only   point   that   was     urged        by     the<\/p>\n
     appellant is regarding maintainability of the instant<\/p>\n
     suit    presented by plaintiff being R.C.S.                 No.181\/89<\/p>\n
     in     view of withdrawal of previous suit being                 R.C.S.\n<\/p>\n
     No.94\/86.       It     is   strenuously    contended          by       the<\/p>\n
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\n                                         :6:<\/span><\/p>\n
     appellant       that     earlier suit being R.C.S.                      No.94\/86<\/p>\n
     was     presented       by    the plaintiff           against         defendant<\/p>\n
     seeking        possession of the property which is                        subject<\/p>\n
     matter     of     the    instant         suit   as      well       as     for       a<\/p>\n
     declaration that the sale deed executed on 04.05.1983<\/p>\n
     in favour of the defendant be declared as nominal and<\/p>\n
     same       be       cancelled.                  According               to       the<\/p>\n
     defendant\/appellant,              in     the instant suit also                  i.e.<\/p>\n
     R.C.S.         No.181\/89,         relief is claimed in respect                    of<\/p>\n
     recovery        of possession of the suit property as                           well<\/p>\n
     as     for redemption of mortgage.               Learned Counsel                 for<\/p>\n
     the     appellant       contends         that R.C.S.           No.94\/86          was<\/p>\n
     withdrawn<\/p>\n
                     unconditionally           by the plaintiff                and     an<\/p>\n
     order     to     that    effect        came     to      be     passed          below<\/p>\n
     Exhibit-24,       which was an application tendered by the<\/p>\n
     plaintiff       seeking withdrawal of the suit.                       Suit came<\/p>\n
     to be withdrawn unconditionally as such, according to<\/p>\n
     the     appellant, in view of provisions of Order                            XXIII<\/p>\n
     Rule     1 of the Code of Civil Procedure, instant                              suit<\/p>\n
     is not maintainable.\n<\/p>\n
     9.         It    would       be     appropriate to           refer        to     the<\/p>\n
     provisions of Order XXIII Rule 1 of the Code of Civil<\/p>\n
     Procedure, which reads as below:\n<\/p>\n
               1.      Withdrawal of suit or abandonment
\n               of part of claim –<\/p><\/blockquote>\n
               (1)           At any time after the institution<\/p>\n
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\n                     :7:<\/span><\/p>\n
      of a suit, the plaintiff may, as against
\n      all or any of the defendants, abandon his
\n      suit or abandon a part of his claim;\n<\/p>\n
      .       Provided that where the plaintiff
\n      is a minor or other person to whom the
\n      provisions contained in rules 1 to 14 of<\/p>\n
      Order XXXII extend, neither the suit nor
\n      any part of the claim shall be abandoned
\n      without the leave of the Court.\n<\/p>\n
      (2) An application for leave under the
\n      proviso   to   sub-rule   (1) shall    be
\n      accompanied by an affidavit of the next
\n      friend and also, if the minor or such<\/p>\n
      other person is represented by a pleader,
\n      by a certificate of the pleader to the
\n      effect that the abandonment proposed is,
\n      in his opinion, for the benefit of the
\n      minor or such other person.\n<\/p>\n
      (3) Where the Court is satisfied,-\n<\/p>\n
      (a).\n<\/p>\n
              that a suit must fail by
\n      of some formal defect, or
\n                                               reason<\/p>\n
      (b).    that there are sufficient grounds<\/p>\n
      for allowing the plaintiff to institute a
\n      fresh suit for the subject matter of a
\n      suit or part of a claim, it may, on such
\n      terms as it thinks      fit, grant    the
\n      plaintiff permission to withdraw from
\n      such suit or such part of the claim with<\/p>\n
      liberty to institute a fresh suit in
\n      respect of the subject matter of such<\/p>\n
      suit or such part of the claim.\n<\/p>\n
      (4)    Where the plaintiff-\n\n      (a).    abandons any suit or          part      of\n\n\n\n\n\n      claim under sub-rule (1), or\n\n      (b).    withdraws from a suit or part of\n<\/pre>\n
      a claim without the permission referred
\n      to in sub rule (3), he shall be liable
\n      for such costs as to the Court may award
\n      and shall be precluded from instituting<\/p>\n
      any fresh suit in respect of such subject
\n      matter or such part of the claim.\n<\/p>\n
      (5)    Nothing in this rule shall be
\n      deemed to authorise the Court to permit
\n      one of several plaintiffs to abandon a
\n      suit or part of a claim under sub-rule<\/p>\n
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\n                                             :8:<\/span><\/p>\n
                (1), or to withdraw, under sub-rule (3),
\n                any suit or part of a claim, without the
\n                consent of the other plaintiffs.\n<\/p>\n
     .          In           view    of    sub-rule (4) of Rule            1,       Order<\/p>\n
     XXIII     C.P.C.,              where the plaintiff withdrew               from      a<\/p>\n
     suit     or        part        of the claim without        the      permission<\/p>\n
     referred           to     in sub-rule (3), he is           precluded            from<\/p>\n
     instituting any fresh suit in respect of such subject<\/p>\n
     matter        or        such     part of the claim.        It has          to    be,<\/p>\n
     therefore,              determined      as to what was the nature                 of<\/p>\n
     the suit previously instituted and the instant suit.\n<\/p>\n
     10.<\/p>\n
     case     of\n                A\n\n                     Thota\n                              \n<\/pre>\n
                         reference is made to two judgments in<\/p>\n
                                    China    Subba   Rao       and      others
\n                                                                                      the<\/p>\n
                                                                                      Vs.\n<\/p>\n
     Mattapalli          Raju        and    others,\n                                            others reported in             AIR       1950\n\n     Federal        Court       page 1;       and in the case Vishwa                 Nath\n\n     Vs.      Shakti          Ram     and others,\n                                          others reported in               AIR       1987\n      \n\n\n     Himachal        Pradesh, page 29, wherein it has been                           laid\n   \n\n\n\n     down     that dismissal of earlier suit for                        redemption,\n\n     whether        abated or withdrawn or in default would                           not\n\n     debar     the       mortgagor from filing a second                    suit       for\n\n\n\n\n\n     redemption          and        that such second suit and              for       that\n\n<\/pre>\n
     matter every successive suit for redemption to redeem<\/p>\n
     the     same       mortgage          can be brought so         long       as     the<\/p>\n
     mortgage        subsists and the right of redemption is not<\/p>\n
     extinguished             by efflux of time or by a decree of the<\/p>\n
     Court passed in the prescribed form.                       There can be no<\/p>\n
     second         opinion          in    respect   of      the        proposition<\/p>\n
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\n                                           :9:<\/span><\/p>\n
     advanced.\n<\/p>\n
     11.          If      we     peruse    the document,             which        is     the<\/p>\n
     foundation            for     institution         of       the      suit,          i.e.<\/p>\n
     unconditional             sale    deed at Exhibit-44, it would                       be<\/p>\n
     evident        that the said document has been executed                              by<\/p>\n
     the     plaintiff           in favour of defendant on                  04.05.1983<\/p>\n
     thereby        transferring the suit property in favour                              of<\/p>\n
     defendant for consideration of Rs.5000\/- for a period<\/p>\n
     of     five years.           It is specifically mentioned in                        the<\/p>\n
     document that the property has been transferred for a<\/p>\n
     period        of     five     years        i.e.        from      04.05.1983          to<\/p>\n
     03.05.1988 and the property was supposed to remain in<\/p>\n
     possession           of the defendant during such period.                           The<\/p>\n
     defendant           has agreed to reconvey the property                         after<\/p>\n
     accepting the amount of Rs.5000\/- after expiration of<\/p>\n
     the period.           It is thus clear that the period covered<\/p>\n
     by     the     deed        Exhibit-44 was to come to                  an     end     on<\/p>\n
     03.05.1988.               However,    plaintiff instituted                   Regular<\/p>\n
     Civil        Suit     No.94\/86       in the Court of              Civil       Judge,<\/p>\n
     Junior         Division,          Jintur    on     22.08.1986.                Relief<\/p>\n
     claimed in the suit was in respect of handing over of<\/p>\n
     possession           to     the    plaintiff       as        well      as     for      a<\/p>\n
     declaration           that       the sale deed dated 04.05.1983                      is<\/p>\n
     nominal        one        and for cancellation of the same.                         The<\/p>\n
     suit     was obviously instituted prior to completion of<\/p>\n
     the     period of five years, as stipulated in the                                deed<\/p>\n
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\n                                          :10:<\/span><\/p>\n
     Exhibit-44.            The cause of action for presentation of<\/p>\n
     the     suit, as mentioned in paragraph 5 of the plaint,<\/p>\n
     is     31.07.1986.        The plaintiff, in the said suit, did<\/p>\n
     not     claim     redemption of the              mortgage.           Obviously,<\/p>\n
     earlier        suit     being R.C.S.        No.94\/86 was founded                   on<\/p>\n
     the     cause of action in respect of alleged refusal by<\/p>\n
     the     defendant to hand over possession on 31.07.1986.\n<\/p>\n
     Moreover,         the      distinguishing              feature         is       that<\/p>\n
     plaintiff        did not ask for redemption of mortgage and<\/p>\n
     he could not have asked, as the period covered by the<\/p>\n
     deed     was     yet     to     come       to    an     end.         Obviously,<\/p>\n
     therefore,        after       an     objection was          raised         by     the<\/p>\n
     defendant<\/p>\n
                      in respect of maintainability of the suit,<\/p>\n
     plaintiff presented an application Exhibit-24 seeking<\/p>\n
     withdrawal        of     the       suit    and    the      Court       permitted<\/p>\n
     plaintiff        to     withdraw the suit.             Withdrawal of              the<\/p>\n
     earlier suit was unconditional.\n<\/p>\n
     12.       If      we peruse the plaint in instant suit i.e.<\/p>\n
     R.C.S.         No.181\/89,          suit is filed for redemption                    of<\/p>\n
     mortgage as well as for recovery of possession of the<\/p>\n
     property.         It     is specifically stated in the                      plaint<\/p>\n
     that     the     period        prescribed        under      the      registered<\/p>\n
     conditional sale deed dated 04.05.1983 has come to an<\/p>\n
     end     and     after completion of period of                     five      years,<\/p>\n
     plaintiff        has got a right to redeem the mortgage and<\/p>\n
     recover the possession.                The date of cause of action,<\/p>\n
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\n                                             :11:<\/span><\/p>\n
     stated        in     the     plaint,         is     18.06.1989,           when      the<\/p>\n
     defendant           refused       to    redeem         the       mortgage        after<\/p>\n
     accepting           the amount and further refused to                        deliver<\/p>\n
     possession           of     the     property.          On     perusal        of     the<\/p>\n
     pleadings           in both the suits, it is evident that both<\/p>\n
     the     suits are founded on different causes of                              action<\/p>\n
     and      are         filed        in    totally        different            set      of<\/p>\n
     circumstances.                The      earlier         suit        i.e.          R.C.S.<\/p>\n
\n\n\n\n\n                                                            \n     No.94\/86           was     restricted         to     claim       in    respect       of\n\n     possession.               However,      no     relief         in      respect        of\n\n     redemption           of     mortgage was claimed.                The      plaintiff\n\n\n\n\n                                             \n     could     not        have asked for redemption of mortgage                           as\n\n     the     period\n                              \n                              prescribed under the deed of                  04.05.1983\n\n     was yet to come to an end.\n                             \n     13.        Considering             the pleadings raised in both the\n\n<\/pre>\n
     suits as well as causes of action stated, it is quite<\/p>\n
     clear     that           both the suits cannot be said to                     be     in<\/p>\n
     respect of a common “subject matter”.                            Therefore, bar<\/p>\n
     prescribed by sub-rule (4) Rule 1, Order XXIII of the<\/p>\n
     Code     of        Civil     Procedure,            obviously       will      not     be<\/p>\n
     attracted.\n<\/p>\n
     14.        It        would     be      appropriate          to     refer      to       a<\/p>\n
     decision           rendered by the Apex Court in the matter of<\/p>\n
     Vallabh       Das Vs.        Dr.Madanlal and others,
\n                                                  others reported in<\/p>\n
     AIR 1970 SC 987, wherein the Apex Court has explained<\/p>\n
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\n                                          :12:<\/span><\/p>\n
     the     meaning          of    a   phrase       “same    subject         matter”\n<\/p>\n
     appearing          in Order XXIII Rule 1 of the Code of Civil<\/p>\n
     Procedure.             It has been observed thus:\n<\/p>\n
                  .       “Subject-matter” in    Order 23,<\/p>\n
                  Rule 1 means the bundle of facts which
\n                  have to be proved in order to entitle the
\n                  plaintiff to the relief claimed by him.\n<\/p>\n
                  Where the cause of action and the relief
\n                  claimed in the second suit are not the
\n                  same as the cause of action and the
\n                  relief claimed in the first suit, the
\n                  second suit cannot be considered to have<\/p>\n
                  been brought in respect of the same
\n                  subject matter as the first suit.     AIR
\n                  1917 Bom 10(1) & AIR 1917 Mad 512 (2)
\n                  (FB), Rel. on.\n<\/p>\n
                  .       Mere identity of some of the<\/p>\n
                  issues in the two suits do not bring
\n                  about an identity of the subject-matter<\/p>\n
                  in the two suits.\n<\/p>\n
     15.          It        would    also    serve     useful        purpose          in<\/p>\n
     referring          to the decision of the Calcutta High Court<\/p>\n
     in     the    case of A.           J.   Judah Vs.        Ramapada         Gupta,
\n                                                                               Gupta<\/p>\n
     reported          in     AIR 1959 Calcutta 715.             While        dealing<\/p>\n
     with    identical             question,    Learned Single            Judge       of<\/p>\n
     Calcutta High Court has observed thus:\n<\/p>\n
                  .        “If the cause of action which
\n                  gave rise to the reliefs claimed in the
\n                  subsequent suit did not arise when the
\n                  previous    suit  was    instituted   and
\n                  withdrawn in the sense that one important
\n                  event absolutely essential to complete
\n                  the cause of action in the subsequent<\/p>\n
                  suit did not take place, then the subject
\n                  matter of the two suits must be different
\n                  and   Order    23 Rule    1(3)   has   no
\n                  application.”\n<\/p>\n
     .            On        perusal of the plaints in both the                   suits<\/p>\n
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\n                                          :13:<\/span><\/p>\n
     i.e.     previously instituted suit and instant suit, it<\/p>\n
     is     observed that, on comparison of the pleadings                         in<\/p>\n
     two suits, it appears that the relief claimed and the<\/p>\n
     facts     narrated constituting the cause of action                         are<\/p>\n
     not     identical.           For determination of the            question,<\/p>\n
     one has to look to the substance of the two suits and<\/p>\n
     not      to         their    form     and   language        only.           The<\/p>\n
     subject-matter of a suit can only be ascertained from<\/p>\n
     the     plaint       filed.      The addition of a new fact to                 a<\/p>\n
     set of existing facts may change the character of the<\/p>\n
     suit and the right to relief.\n<\/p>\n
     16.       If        we\n                            ig  peruse the plaint in       the      previously\n\n<\/pre>\n
     instituted suit, it would be evident that the earlier<\/p>\n
     suit     was        presented before completion of the                period<\/p>\n
     prescribed          under the deed Exhibit-44.            No relief          in<\/p>\n
     respect        of redemption of mortgage was claimed in the<\/p>\n
     earlier        suit.        The suit was founded on a            different<\/p>\n
     cause     of action.          However, in the instant suit                i.e.<\/p>\n
     suit     instituted         at   subsequent      stage,        relief        in<\/p>\n
     respect        of    redemption of mortgage is            claimed.           So<\/p>\n
     also,     the       suit     is instituted after        completion           of<\/p>\n
     period     prescribed under the document Exhibit-44.                         In<\/p>\n
     this view of the matter, the “subject matter”, as has<\/p>\n
     been     explained          by the Apex Court in the           matter        of<\/p>\n
     Vallabh       Das (supra), cannot be said to be identical.\n<\/p>\n
     Therefore, the bar, as contended by the appellant, in<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:34:06 :::<\/span>
\n                                        :14:<\/span><\/p>\n
     view of the provisions of Rule 1, Order XXIII of Code<\/p>\n
     of     Civil        Procedure,     cannot be said     to     have       been<\/p>\n
     attracted.<\/p>\n
\n\n\n\n\n                                                                           \n     17.           Learned        Counsel for the appellant has placed\n\n\n\n\n                                                   \n     reliance           on   the judgment in the case        of       Murlidhar\n\n     Khunteta          Vs.   Bhooramal,\n                             Bhooramal reported in 1978             Rajasthan\n\n<\/pre>\n
     191.         Said matter is in respect of suit for eviction<\/p>\n
     under        the provisions of Rajasthan Premises                (Control<\/p>\n
     of     Rent & Eviction) Act, 1950.          It has been observed<\/p>\n
     in     the        reported    matter that the cause         of     action,<\/p>\n
     which        is     the foundation of both the suits, was                 one<\/p>\n
     and the same and, therefore, subsequent suit was held<\/p>\n
     to be barred under the provisions of Order XXIII Rule<\/p>\n
     1 of the C.P.C.\n<\/p>\n
     .            Similar is the case in respect of judgment in<\/p>\n
     the case of Papinayakanahalli Venkanna and others Vs.<\/p>\n
     Janadri       Venkanna        Setty (by L.Rs.),
\n                                             L.Rs.) reported in                AIR<\/p>\n
     1985 Karnataka 166.             The reported matter is under the<\/p>\n
     provisions          of Karnataka Rent Control Rules and                 lays<\/p>\n
     down an identical principle.\n<\/p>\n
     .            Learned      Counsel    for the appellant has              also<\/p>\n
     placed       reliance on the judgment in the case of Order<\/p>\n
     of the Holy Cross Vs.             Lonnappan Thattil,
\n                                                 Thattil reported in<\/p>\n
     AIR 1990 Kerala 215.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:34:06 :::<\/span>
\n                                          :15:<\/span><\/p>\n
     18.          For         the      reasons      recorded         above,          the<\/p>\n
     judgments,          on which reliance is sought to be                      placed<\/p>\n
     by     the     appellant, are of little help and cannot                          be<\/p>\n
     strictly          made applicable to the facts of the instant<\/p>\n
     case.\n<\/p>\n
     19.          It     is observed that the point raised in                        the<\/p>\n
     Second       Appeal was not raised before both the                         Courts<\/p>\n
     below.         Although the memorandum of appeal                     presented<\/p>\n
     to     the     first appellate Court does make a                     reference<\/p>\n
     cursorily          to      the    objection, however,           ground        no.8<\/p>\n
     raised       in      the
\n                              ig    memorandum     of appeal       also       do     not<\/p>\n
     specifically            lay foundation for consideration of the<\/p>\n
     objection.              However, the question advanced, being                      a<\/p>\n
     question          relating       to bar for instituting              the      suit<\/p>\n
     itself,        as       provided under Order XXIII Rule 1,                    this<\/p>\n
     Court        thought it appropriate to admit the appeal                          by<\/p>\n
     formulating such question and the same has been dealt<\/p>\n
     with in this appeal for the first time.\n<\/p>\n
     20.          For        the reasons set out above, I do not find<\/p>\n
     that     the        argument       advanced    by    the      appellant          in<\/p>\n
     support of the objection raised is acceptable.                              There<\/p>\n
     is no merit in the Second Appeal and same deserves to<\/p>\n
     be dismissed.\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:34:06 :::<\/span>
\n                                        :16:<\/span><\/p>\n
     21.       Appeal        is,    therefore,       dismissed.            In     the<\/p>\n
     facts     and circumstances of the case, there shall                          be<\/p>\n
     no order as to costs.             Pending Civil Applications, if<\/p>\n
     any, stand disposed of.\n<\/p>\n
     22.       A    Request is made by learned Counsel for the<\/p>\n
     appellant      that during pendency of the second appeal,<\/p>\n
     execution      and       operation of the judgment and                  decree<\/p>\n
     passed       by the trial Court and confirmed in appeal by<\/p>\n
     the     first appellate Court was directed to be                        stayed<\/p>\n
     by    this     Court.       It is stated that appellant                 is    in<\/p>\n
     possession        of     the    property and his         possession           be<\/p>\n
     protected         for
\n                          ig    further     period     of     eight          weeks.\n<\/p>\n
     Appellant      has       expressed       willingness         to     file      an<\/p>\n
     undertaking         that      on expiration of such            period,        he<\/p>\n
     would vacate his possession.\n<\/p>\n
     23.       In      this     view      of the matter,        it      would      be<\/p>\n
     desirable      to continue interim stay to the                    execution<\/p>\n
     and     operation        of judgment and decree passed by                    the<\/p>\n
     trial     Court        which    has been modified by              the      first<\/p>\n
     appellate Court, for further period of eight weeks on<\/p>\n
     condition      of       appellant tendering an undertaking                    to<\/p>\n
     this Court that on expiration of such period of eight<\/p>\n
     weeks,       he would vacate the possession and hand                       over<\/p>\n
     the same to the Respondent.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:34:06 :::<\/span>
\n                    :17:<\/span><\/p>\n
                          (R.M.BORDE)
\n                             JUDGE<\/p>\n
                      *******<\/p>\n
     bad\/sa1401<\/p>\n
                                ::: Downloaded on – 09\/06\/2013 13:34:06 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ashruba vs Ramkishan on 4 July, 2008 Bench: R. M. Borde :1: 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-33743","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAshruba vs Ramkishan on 4 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ashruba-vs-ramkishan-on-4-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ashruba vs Ramkishan on 4 July, 2008 - 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