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Sukumar Banerjee Vs. Dilip Kumar Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 1300 of 1981
Judge
Reported inAIR1982Cal17,85CWN1019
ActsCode of Civil Procedure (CPC) , 1908 - Section 11 - Order 23, Rule 1, 1(2) and 1(4); ;West Bengal Premises Tenancy Act, 1956 - Section 17(2)
AppellantSukumar Banerjee
RespondentDilip Kumar Sarkar and ors.
Appellant AdvocateR.P. Banerjee and ;Amitava Goswami, Advs.
Respondent AdvocateSakti Nath Mukherjee and ;Prabir Kr. Samanta, Advs.
DispositionApplication dismissed
Cases ReferredGanga Bai v. Vijay Kumar
Excerpt:
- .....that permission for withdrawal granted by the court has the effect of giving the plaintiff of that suit permission to sue afresh on the subject-matter of the suit. moreover, when that suit was withdrawn, the effect in law is that there was no such suit. consequently the question of res iudicata is out of the way. further elaborate submissions have been made on other points, which are unnecessary fax the purpose of disposal of this simple revisional application.5. it appears that title suit no. 284 of 1977 was permitted to be withdrawn by the learned munsif. the plaintiff made a prayer for liberty to bring a fresh suit. no order was given thereon, but that prayer was not refused. in the bench case of golam mahomed v. shibendra reported in (1908) ilr 35 cal 990 at p. 995, it has been.....
Judgment:
ORDER

B.N. Maitra, J.

1. The tenant-defendant filed an application under Section 17 (2) of the West Bengal Premises Tenancy Act, 1956. The objection was filed by the plaintiff-landlords. The defendants' plea was that there was no relationship of landlord and tenant between the parties regarding the premises in question. In the earlier Title Suit No. 534 of 1974 instituted in the Court of the third Munsif at Alipore, it was already decided that defendant No. 1 was a tenant regarding that property under plaintiff No. 2. That order remains unchallenged and operates as res judicata. He is not a defaulter. The plaintiff's objection was that the previous title suit was withdrawn with liberty to sue afresh and so there was no question of res judicata.

2. The learned Munsif accepted the plaintiff's contention and stated that the previous decision did not operate as res iudicata. He, however, found that the defendant was a defaulter from October, 1973. Hence necessary order was passed in this respect. A direction was given to defendant No. 1 to liquidate the arrears in lump by 30th April. 1981, and also to pay the current rent within the 15th day of each month. Hence this revisional application by the defendant-petitioner No. 1.

3. The learned Advocate appearing on behalf of the petitioner has referred to a decision of Renu Pada Mukherjee, J. in the case of Bishnu Charan v. Basudeb Banerjee in (1957) 99 Cal LJ 72 to show that where in a suit for ejectment brought under the provisions of West Bengal Rent Control Act, 1950, the tenant pleads that he is not the plaintiffs tenant, the decision of thecourt on such a question for the purpose of deciding an application under Section 14 (4) of the Act. must be taken to be final and conclusive at all subsequent stages of the suit. Subsequently, the plaintiff prayed for withdrawal of the aforesaid suit with liberty to sue afresh on the same cause of action. That permission was refused and only the plaintiff was permitted to withdraw the suit. Hence the previous finding operates as res iudicata.

4. The learned Advocate appearing on behalf of the opposite party has stated that the previous suit was filed for ejectment by five brothers. There was an additional observation regarding the contractual relationship between the plaintiff No. 4 and defendant. That observation was unnecessary. The case of Ganga Bai v. Vijay Kumar in : [1974]3SCR882 has been cited to show that when the matter relating to the alleged partition was met (sic-Not?) directly and substantially in issue in the suit, the finding that the partition was a sham one, cannot operate as res judicata. It has been contended that though the plaintiff of that suit made an application for withdrawal with liberty to sue afresh, only permission was given to withdraw the suit. Nevertheless, that permission for withdrawal granted by the court has the effect of giving the plaintiff of that suit permission to sue afresh on the subject-matter of the suit. Moreover, when that suit was withdrawn, the effect in law is that there was no such suit. Consequently the question of res iudicata is out of the way. Further elaborate submissions have been made on other points, which are unnecessary fax the purpose of disposal of this simple revisional application.

5. It appears that Title Suit No. 284 of 1977 was permitted to be withdrawn by the learned Munsif. The plaintiff made a prayer for liberty to bring a fresh suit. No order was given thereon, but that prayer was not refused. In the Bench case of Golam Mahomed v. Shibendra reported in (1908) ILR 35 Cal 990 at p. 995, it has been stated that when the plaintiff files an application to withdraw from the suit with liberty to sue afresh, on which an order was passed on the same date giving permission to withdraw the suit and although nothing was said in that order as to the plaintiff's liberty to institute a freshsuit on the same cause of action, that order ought to be read along with the application, on which it was passed. It has already been indicated that that prayer was not refused. Hence it is held that that order has the effect of granting permission to the plaintiff with liberty to sue afresh on the same cause of action.

6. The effect of the withdrawal from the suit is that the parties are left to the position which they occupied before the suit was filed. This view was taken in the case of Behari Lal v. Baran in (1894) ILR 17 All 53. In the Bench case of Sashi Bhusan v. Moti in AIR 1945 Cal 317 at p. 318 Sri Bijan Kumar Mookerjee presiding over the Bench has followed the aforesaid case of Behari Lai v. Baran (supra) and stated that when the Court grants leave to file a fresh suit or proceedings on the same cause of action, the withdrawn suit has no existence in the eye of law. It is available for no purpose and the parties are relegated to the position which they occupied before the suit was brought.

7. The case of Ganga Bai v. Vijay Kumar, (AIR 1976 SC 1126) (supra) cited for the O, P. is on a different point. In the case reported in (1938) 42 Cal WN 492 it has been stated that a party has a right to file an appeal against an adverse finding, which is sought to be appealed against, on the ground that such finding is one to which the rule of res judicata applies. The question whether that view of the Calcutta High Court is correct was left undecided by the Supreme Court.

8. Nevertheless, the bar enjoined by Sub-rule (4) of Rule 1 of Order 23 of the Civil P. C. not to bring another suit on the same cause of action, has no application because the claim and the subject matter are different. Moreover, that question is not at all germane in his revisional application.

9. Since the plaintiff of that suit was permitted to withdraw from it with liberty to sue afresh, in the eye of law there was no existence of any such suit. Consequently, the findings arrived at in the earlier suit have no effect on the present suit. It is, therefore, held that there is no question of res judicata.

10. The question of default has not been challenged. Hence the contentionput forward on behalf of the petitioner cannot be sustained.

11. The application is, therefore, dismissed.

12. There will be no order as to costs.


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