1. This is a plaintiff's second appeal against a judgment and decree of the Additional District Judge, Hoshiarpur, affirming a decree of the trial Court holding that the plaintiff could not continue his second suit because of the dismissal of the first.
2. In order to make clear how the question arose it is necessary to describe the litigation which has given rise to this appeal. On the 22nd of June, 1946, Harnam Singh plaintiff brought a suit for declaration that he was a lawfully adopted son of Hira Singh as he was adopted by Hira singh's widow Diali who had obtained her husband's permission during his lifetime. After the defendants had put in their written statement an issue as to adoption was framed on the nth of December, 1946, and the case was adjourned to the 4th of March, 1947, for evidence.
3. On the 11th of January, 1947, Harnam Singh brought another suit against the same defendants on practically the same allegations.
4. On the 22nd of February, 1947, the plaintiff applied for withdrawing the first suit stating that he did not want to proceed with that suit. On the same day the plaintiff's Pleader made the following statement:
'The suit be dismissed and the costs of the defendants be ordered to be paid by the plaintiff.'
On the 4th of March, 1947, the Court passed an order which is as follows:
'Plaintiff absent. Rana Feroze-ud-Din Vakil is present for defendants Nos. 1 to 3 and 5 to 8. In accordance with the application of the plaintiff and the statement of the plaintiff's counsel dated the 22nd of February, 1947, the suit of the plaintiff be dismissed with costs...........'
The defendants pleaded that the second suit was not maintainable because of the dismissal of the first and both the Courts below held that the suit was not maintainable.
5. in appeal counsel for the appellant has submitted that a second suit brought during the pendency of the first suit cannot be dismissed if the first suit is dismissed under the circumstances such as these. He contended that there are only four provisions in the Civil P. C. which bar a second suit:
(i) Section 10 which provides for stay;
(ii) Section 11 which bars a suit because of 'resjudicata';
(iii) Provisions of Order IX, and (iv) Order XXIII Rule 1
Obviously Section 10 does not apply to the facts of the case. Section 11 is applicable if the matter directly and substantially in issue has been heard and finally decided. Order IX would apply where oneof the parties is not present and the suit is dismissed in default or decreed 'ex parts' and Order XXIII Rule 1 where one suit is withdrawn without permission to bring a fresh suit.
6. Mr. Pandit relied on 'Mangilal v. Radha Mohan', AIR (17) 1930 Lah 599, where it was held by a Division Bench that under Order XXIII, Rule 1 a second suit instituted before the first suit is abandoned or dismissed is not affected by such withdrawal because Order XXIII Rule 1 applies only to suits instituted after the withdrawal or abandonment of previous suits. Reference in this case was made to a previous judgment of the Lahore High Court in 'Ram Mal v. Upendra Datt'. AIR (15) 1928 Lah 710.
7. in reply Mr. Doabia relied on another judgment of the Lahore High Court in 'Amir Dinshahab Din v. Shiv Dev Singh Jhanda Singh', AIR (34) 1947 Lah 102, where two suits had been brought on the same cause of action against the defendants by the same plaintiffs but on different dates. One suit was dismissed for default and it was held that the second suit was barred because (1) no man should be allowed to sue on the same cause of action twice as it offends against the well-known maxim that no man shall be twice vexed with one and the same cause of action and (2) that the institution of and trial of the second suit amounted to an abuse of the process of the Court. He laid particular emphasis on the observations of Achhru Ram, J., at p. 104:
'A plaintiff, on finding at the conclusion of the trial, that the evidence has all gone against him and that this suit must fail on the merits has, according to this view, only to file another suit on the same cause of action sometime before the final disposal of his first suit and then he can safely give the go-bye to the first suit, withdraw it or have it dismissed in default, and proceed merrily with the second suit.'
He also relied on a passage in Mulla's Code ofCivil Procedure:
' 'Consent decree and estoppel.' -- The present section does not apply in terms to consent decrees; for it cannot be said in the case of such decrees that the matters in issue between the parties 'have been heard and finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as 'res judicata' as a decree passed 'in invitum'. It raises an estoppel as much as a decree passed 'in invitum.''
8. Mr. Doabia anally submitted that if several suits are allowed on the same cause of action to be brought one after the other so that two suits arc pending at the same time it would mean that every time if a man finds that the evidence is going against him, all that he is to do is to bring another suit and withdraw the first and thus start afresh, and thus there will be multiplicity of suits which will be a gross abuse of the process of the Court, and he has relied on a passage in Chitaley's Civil Procedure Code at p. 1425.
9. With regard to toe maxim that no man shall be vexed twice Mr. Pandit referred to a passage in 'Mt. Lachmi v. Mt. Bhulli', 8 Lah 384, at p. 399, where it was held that this maxim presupposes a fair trial and final adjudication at least once, and with regard to the abuse of the process of the Court he referred to 'Chhatrapat Singh Dugar v. Kharag Singh Lachmiram', 44 Cal 535, where at p. 541, Sir Lawrence Jenkins, made the following observations:
'In clear and distinct terms the Act entitles a debtor to an order of adjudication when its conditions are satisfied. This does not depend on the Court's discretion but is a statutory right; &a; debtor who brings himself properly within the terms of the Act is not to be deprived of that right on so treacherous a ground of decision as an 'abuse of the process of the Court'. This case illustrates the peril of this doctrine in India, for what has been treated by the Courts below as such an abuse appears to their Lordships in no way to merit this censure.'
10. Mr. Pandit also referred to 'Annamalay Chetty v. B. A. Thornhill', AIR (18) 1931 P C 203, where their Lordships of the Privy Council held that a previous suit dismissed for non-compliance with the provisions of law does not bar a subsequent suit on the principle of 'res judicata'.
11. No doubt there is a conflict in the views taken by the Division Benches of the Lahore High Court. Mr. Justice Addison and Mr. Justice Bhide were of the opinion that a suit brought during the pendency of a previously instituted suit does not become barred by the provisions of p. XXIII Rule 1, Civil P. C., on the withdrawal or dismissal of the first suit. Chief Justice Rashid and Mr. Justice Achhru Ram on the other hand held that such a suit is barred because it would militate against the maxim of 'a person being vexed twice and it is an abuse of the process of the Court'. Individually no doubt these principles may be dangerous to apply, but in the circumstances of this case where a man had brought a suit for being declared as the legally adopted son of his adoptive father on the ground of adoption by the widow of the father cannot be allowed to withdraw that suit after the stage of evidence has come and try to proceed with another suit which he had brought with slight variations in his allegations, one of them being that he was adopted by the adoptive father and not by the widow.
12. in my opinion it is a case which is a gross abuse of the process of the Court and has been rightly dismissed. I, therefore, dismiss this appeal with costs throughout.
13. I grant leave for Letters Patent Appeal.