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Musammat Phikna Vs. Rahmat Ullah Sardar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.622
AppellantMusammat Phikna
RespondentRahmat Ullah Sardar and ors.
Cases ReferredParsotam Gir v. Narbada Gir
Excerpt:
civil procedure code (act xiv of 1882) sections 13, 30 - application under section 30, presented too late--suit dismissed on that ground--res-judicata--subsequent suit not barred. - .....we decree the appeal, set aside the decree of the court below and under order 41 rule 23 remand the case with directions to readmit the suit under its original number on the register of civil suits and proceed to determine it. costs here and hitherto will abide the event.
Judgment:

1. The lower Court has given 2 reasons for dismissing the suit brought by Musammat Phikna. The 1st reason is that the present suit is barred by a decree dated 6th December 1895 and the 2nd reason is that the provisions of Section 30 of the Code of Civil Procedure 1882 have not been complied with and that it was necessary in the present case that they should be complied with before the suit could be maintained. We have no doubt in our minds that the Court below has erred in regard to the 1st reason and we would only refer to the judgment of their Lordships of the Privy Council in Parsotam Gir v. Narbada Gir 21 A. 505. In the previous suit the matters in issue and also in issue in the present case had not been finally decided. In fact there was no decision upon any one of the points that were in controversy between the parties. All that the Court which decided the case on 6th December 1895 held was that the application for permission to sue on behalf of other persons interested under Section 30 of the Civil Procedure Code of 1882 had come too late. The 1st point taken in appeal must, therefore, prevail. With regard to the second plea in the present case Musammat Phikna sues in her own right and in her own plaint says specifically. No person is competent to interfere with the plaintiff's right or the places of worship of the Hindus of which the plaintiff is the pujari.' The Court below should have gone into the question whether or not the plaintiff had a right in herself in the property in dispute. We decree the appeal, set aside the decree of the Court below and under Order 41 Rule 23 remand the case with directions to readmit the suit under its original number on the register of Civil suits and proceed to determine it. Costs here and hitherto will abide the event.


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