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Trimbak Purshottam Patil Vs. Yashodabai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 55 of 1970
Judge
Reported inAIR1971Bom295; 1971MhLJ523
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 23, Rule 1; Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 36, 36(2), 38, 38(1) and 38(3); Tenancy Law
AppellantTrimbak Purshottam Patil
RespondentYashodabai
Appellant AdvocateS.V. Naik, Adv.
Respondent AdvocateS.M. Samudra, Adv.
Excerpt:
.....on merits as well as on the ground that the previous proceedings or the decision of the naib tahsildar operated as res judicata. the tribunal also took the view that it was not at all necessary for her to give notice to the tenant before she could make an application for resumption and it was not necessary to give any notice on 15-10-1966. the tribunal having held that the second application was maintainable, did not go into the question of fact as to whether her need was genuine and she bona fide required the fields for her personal cultivation and if so, how much land she was entitled to resume, nor did it give any directions to the appellate court to find out whether she had satisfied the requirements necessary for the resumption of the land and what would be the land she..........38 (1) of the tenancy act.2. evidence was led in the case and the application was rejected by the naib tahsildar on merits holding that her need is not bona fide. in appeal, the order of the naib tahsildar was set aside by the special deputy collector by his order dated 22-9-1962 and the case was remanded for fresh trial. during the pendency of the proceedings before the naib tahsildar on remand, the respondent withdrew her application for resumption on 6-11-1962 without seeking permission of the court to withdraw the same. she had made an application for that purpose to the naib tahsildar alleging certain facts why she was withdrawing the resumption proceedings. on her application the tenancy naib tahsildar dropped the proceedings without reserving any opportunity to the respondent to.....
Judgment:
ORDER

1. The respondent is the tenure-holder of fields survey Nos. 8/6, 69/1A and 69/1B, total area 16 acres 29 gunthas of mouza Isapur, taluq Akot, district Akola. She gave a notice to the petitioner under Section 38 (1) of the Bombay Tenancy and Agricultural Lands Act, (hereinafter called the Tenancy Act), on 10-2-1961 alleging that the petitioner Is her tenant and she wants the aforesaid lands bona fide for her personal cultivation. This notice was followed by an application on 23-3-1961 under Section 36(2) read with Section 38 (1) of the Tenancy Act.

2. Evidence was led in the case and the application was rejected by the Naib Tahsildar on merits holding that her need is not bona fide. In appeal, the order of the Naib Tahsildar was set aside by the Special Deputy Collector by his order dated 22-9-1962 and the case was remanded for fresh trial. During the pendency of the proceedings before the Naib Tahsildar on remand, the respondent withdrew her application for resumption on 6-11-1962 without seeking permission of the Court to withdraw the same. She had made an application for that purpose to the Naib Tahsildar alleging certain facts why she was withdrawing the resumption proceedings. On her application the Tenancy Naib Tahsildar dropped the proceedings without reserving any opportunity to the respondent to file a fresh application for resumption of the said fields from the petitioner.

3. The respondent then served the petitioner with a fresh notice dated 16-10-1966 under Section 38 (1) of the Tenancy Act. This notice was again followed by another application under Section 36 (2) read with Section 38 (1) of the Tenancy Act on 7-1-1967 for resumption of the same fields again from the same tenant. This application was also contested by the tenant who contested the application on merits as well as on the ground that the previous proceedings or the decision of the Naib Tahsildar operated as res judicata. The Naib Tahsildar held that the respondent having withdrawn the earlier proceedings was not entitled to claim very same lands on the same grounds. In a subsequent proceedings, according to him, she was estopped from claiming the same. The Naib Tahsildar also held that the respondent did not require the land for bona fide personal cultivation. The application of the respondent was thus rejected.

4. The order was challenged again in appeal and the Special Deputy Collector dismissed the appeal agreeing with the Tenancy Naib Tashildar that a fresh application in respect of the same cause of action and same subject-matter was not tenable. It appears that he did not go into the question of the merits of the case. The respondent then filed a revision application before the Revenue Tribunal. The Revenue Tribunal also did not go into the question whether the need of the landlady was genuine and she bona fide needed the land for her personal cultivation, but on the question of bar of the second proceedings, the Tribunal took the view that the second applications for resumption is spite of the withdrawal of the first application without the permission to institute a fresh application was not barred. The Revenue Tribunal has taken the view that though before 31st of March, 1961 a notice was given and application was filed, the application had not finally come to an end and, therefore she could withdraw her application any time without assigning any reasons and her right of resumption was not lost to her and, therefore, she could resume the lands for personal cultivation at any time during her life time. The Tribunal also took the view that it was not at all necessary for her to give notice to the tenant before she could make an application for resumption and it was not necessary to give any notice on 15-10-1966. The Tribunal having held that the second application was maintainable, did not go into the question of fact as to whether her need was genuine and she bona fide required the fields for her personal cultivation and if so, how much land she was entitled to resume, nor did it give any directions to the Appellate Court to find out whether she had satisfied the requirements necessary for the resumption of the land and what would be the land she would be entitled to resume, if any. In fact, if the Tribunal was of the view that the present application for resumption was maintainable in spite of the withdrawal of the first application, the only course left open for it was to have remanded the case to the appellate Court to decide the appeal on merits and to find out whether the respondent had satisfied the requirements of Section 38 (1) and 38 (3) (c) and (d) and then to find out if she was entitled to resume any land and if so, how much. The order of the Tribunal could have been set aside on this ground alone, but there is a further fundamental matter on which the order of the Revenue Tribunal needs to be set aside.

5. It is an admitted position now that the respondent who is a widow could make an application for resumption of the land if she needed the land for her personal cultivation and that she actually terminated the lease of the petitioner by giving a notice on 10-2-1961 and also filed an application under Section 36 read with Section 38 (1) for resumption. It is also an admitted position that her application was rejected by the Tenancy Naib Tahsildar, but on appeal the order was set aside and the case was remanded to the Naib Tahsildar, and during the pendency of the case before the Naib Tahsildar on remand, the application was withdrawn by the respondent. It is also clear from the record that no permission was granted by the Naib Tahsildar to the respondent to institute a fresh application in the same matter on the withdrawal of that application.

6. The previous application dated 23-3-1961 was based on her right to resume the lands from the tenant if she needed the same for her personal cultivation and if she succeeded in showing that she needed the land for her bona fide personal cultivation, resumption of such land as she would be entitled to under Section 38 would be ordered in her favour. For resuming the land a notice under Section 38 (1) had to be given which was given and the application had to be made which was also made by the respondent. The second application' dated 7-1-1967 is also based on the same right which the respondent claimed to resume the land for her bona fide personal cultivation. All the ingredients which the respondent had to establish in her first application were required to be established in her second application also. Thus the cause of action and the subject-matter of both these applications is one and the same. In fact in the earlier application evidence was also recorded and the Naib Tahsildar had come to a finding that she did not require the land for her bona fide personal cultivation. Even after remand if she had succeeded in putting before the Naib Tahsildar the necessary material, she would have been entitled to an order in her favour. She, however, withdrew her application without obtaining permission of the Naib Tahsildar for instituting a fresh application on the same cause of action or in respect of the same subject-matter. It is true that the Naib Tahsildar while rejecting the present application held that it was barred on the principles of res judicata. The expression is not quite correct, but what seems to have weighed with the Naib Tahsildar was that successive applications could not be filed one after the other in respect of the same cause of action and the same subject-matter. When the matter was remanded to the Naib Tahsildar, there were no findings because the findings given by the Naib Tahsildar were set aside by the Appellate Court in its remand order. Therefore, strictly speaking the second application would not be barred on the principles of res judicata because there were no findings in the earlier proceedings which would be binding between the same parties in a subsequent proceeding. However, the principles of Order 23, Rule 1, Civil Procedure Code, would apply in the present case. The principles in Order 23, Rule 1 are in fact on the same lines as the principles in Section 11, Civil Procedure Code. The policy of law underlying Section 11 of the C. P. Code is that a litigant should not be harassed more than once in respect of the same subject-matter. It is based on this principle that once a lis has been decided or certain issues have been decided between the same parties in a previous litigation, the unsuccessful party should not be permitted to litigate the same matter again in a subsequent proceeding and harass the other party. The same principle seems to be underlying Order 23, Rule 1. If the plaintiff or the applicant voluntarily chooses to withdraw a proceeding filed by him for no reason whatsoever and without obtaining the permission of the Court, then such a plaintiff or the applicant cannot be allowed to file successive suits or applications in respect of the same subject-matter against the same party. This seems to be the principle underlying Order 23. Rule 1.

7. A specific provision has been made under Order 23, Rule 1 permitting the plaintiff to institute a fresh suit, provided the permission of the Court is sought to institute a fresh suit. This provision is obviously made for the reason that there may be certain factors. technical factors, on account of which the suit is likely to fail and even though the plaintiff may have a good case on merits, there would be a failure of justice. It is for this purpose the Court is required to apply its mind while giving permission to withdraw and if the Court is satisfied that the withdrawal should be allowed with permission to institute a fresh suit, such permission is granted. If the permission is not granted, then there is no right in the withdrawing plaintiff to file a fresh suit. These principles are very wholesome principles and avoid the harassment of the other party ad infinitum. If such a provision was not there, then a cantankerous plaintiff may file a proceeding, carry it to a certain stage, withdraw it later and then file fresh proceeding and he may repeat this process ad infinitum with a view to harass the defendant, if not anything more. Such a course is not encouraged) by law and that is why a provision like the one in Order 23, Rule 1. Civil Procedure Code was made and I think the same principles which are principles of general application should apply to a proceeding under the Tenancy Act and if one litigation in respect of the subject-matter under the tenancy law has come to an end or has been withdrawn without the permission of the Court to institute a fresh application, a subsequent application should be barred, in view of the withdrawal of the earlier application, -the respondent was precluded from filing the second application again for the same purpose, namely, resumption of the lands, in the possession of the petitioner.

8. The Naib Tahsildar and the Deputy Collector were right in their view and the Revenue Tribunal was in error in holding that the second application was not barred. Accordingly the order, of the Revenue Tribunal is set aside, with the result that the application of the respondent dated 7-1-1967 for resumption of the lands shall stand dismissed. The petition, therefore, is allowed with costs.

9. Petition allowed.


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