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Smt. Raj Bhatia Vs. Smt. Chander Kanta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 113 of 1991
Judge
ActsJammu and Kashmir Code of Civil Procedure (CPC) , 1977 Svt. - Order 23, Rule 1(2)
AppellantSmt. Raj Bhatia
RespondentSmt. Chander Kanta
Appellant Advocate L.K. Sharma, Adv.
Respondent Advocate A.V. Gupta, Adv.
DispositionPetition partly allowed
Cases ReferredSinga Reddi v. Subba Reddi
Excerpt:
- .....right tofile a fresh suit on the same grounds. the trialcourt came to the conclusion that as the freshsuit has not been filed on the same cause ofaction, it was maintainable and could not bedismissed. 3. i have heard learned counsel for the parties and perused the record.4. order xxiii, rule 1, c.p.c. provides that at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim and the court, if satisfied, that the suit must fail by reason of some formal defect or that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit, for the subject matter or part of the claim, grant him the permission to withdraw from such suit or abandon such part of the claim with liberty.....
Judgment:
ORDER

R.P. Sethi, J.

1. While deciding the preliminary issue, the trial Court vide order impugned in this revision petition, held the suit to be maintainable and directed for recording of the plaintiffs evidence. The order impugned is stated to be contrary to law and not sustainable.

2. The facts giving rise to the filing of thepresent revision petition are : that the plaintiff-respondent had filed a suit for ejectmenton 6-10-1985 which was withdrawn and afresh suit was filed on 25-8-1990 seekingeviction of the petitioner allegedly on identical grounds. The defendant pleaded that thesuit of the plaintiff was not maintainable inview of the provisions of Order XXIII, C.P.C.as the plaintiff had not reserved any right tofile a fresh suit on the same grounds. The trialCourt came to the conclusion that as the freshsuit has not been filed on the same cause ofaction, it was maintainable and could not bedismissed.

3. I have heard learned counsel for the parties and perused the record.

4. Order XXIII, Rule 1, C.P.C. provides that at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim and the Court, if satisfied, that the suit must fail by reason of some formal defect or that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit, for the subject matter or part of the claim, grant him the permission to withdraw from such suit or abandon such part of the claim with liberty to institute fresh suit in respect of the subject-matter of such suit or such part of the claim. However, where the plaintiff withdraws from the suit or abandons part of a claim without the permission, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. No doubt, theplaintiff has a right to withdraw the suit even without permission, but, in that case he is precluded from suing again on the same cause of action unless a permission is obtained by him at the time of withdrawing of the suit.

5. To attract the provisions of Sub-Rule (2) of Order XXIII debarring a person from filing a fresh suit, it has to be shown that the second suit is between the same parties and the fresh suit is in respect of the same subject-matter. The term 'subject-matter' has been interpreted to mean the plaintiffs cause of action is not barred under the rule even though the suit may relate to the same property. The scope of the words 'subject matter' was considered in AIR 1962 Punjab 50 wherein it was held :

'The term 'subject-matter' occurring in Sub-Clause (3) of Order 23, Rule 1 means the plaintiffs cause of action for his suit. Consequently, if a plaintiff brings a suit on a different cause of action, even though it may relate to the same property, the same would not be barred under Order 23, Rule 1 (3), despite the fact that the first suit was withdrawn without permission to bring a fresh suit. Where the first suit was instituted under Order 20, Rule 13, by the widow of the deceased Muhamedan for administration of his estate and also claimed in that suit an amount of her dower debt, and the suit was withdrawn without leave to file a fresh suit, her second suit for recovery of her dower debt against the heirs of her deceased husband is not barred. The cause of action in the first suit was the death of her husband leaving an estate which had to be administered. The cause of action in the second suit is the recovery of the dower debt, which she is entitled to realise as a creditor from the estate left by her husband. The two suits are different in nature and are based on different causes of action'.

The addition of a new relief would not alter the situation in favour of the plaintiff in a subsequent suit. The Supreme Court also considered the scope of the words 'subject-matter' in Vallab Dass v. Madan Lal, AIR 1970 SC 987, and held (para 5):

'Rule 1, Order 23, Code of Civil Procedure entitles Courts to permit a plaintiff to with-draw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the previous suit. The expression 'subject-matter' is not defined in Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit..........Mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits. As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bom 155 : AIR 1917 Bom 10(1), the expression 'subject-matter' in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words 'subject-matter means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, C.J., in Singa Reddi v. Subba Reddi, ILR 39 Med 987; AIR 1917 Mad 512 (2) (FB), that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit.'

In AIR 1985 Kant 166, a Division Bench of that Court found that both the earlier and fresh suits for eviction in that case were founded on bona fide requirement of the landlord and the requirement for re-construction. On facts, it was found that the subject-matter or part of the claim in fesh suit, wasfounded on the same set of facts.

6. Learned counsel for the respondent-plaintiff has, however, submitted that as the plaintiff had filed an application to withdraw the suit with liberty to issue afresh and the Court permited the plaintiff to withdraw the suit, permission to file a fresh suit must be presumed. He has referred to AIR 1982 Cal 17, AIR 1976 Patna 259 (sic), AIR 1932 Mad 155 (1) and AIR 1977 Punjab 131 (sic). The facts of those cases were different and the Calcutta High Court after distinguishing the facts of the case from the facts of the case noticed by the Supreme Court in AIR 1974 SC 1126, came to the conclusion that as the plaintiff's prayer was not refused the order had the effect of granting permission to the plaintiff with liberty to sue afresh on the same cause of action. However, such a presumed permission would depend upon the facts of each case and cannot be deemed to be a rule of law. Order XXIII, Rule 2 contemplates the grant of specific permission for filing a fresh suit without leaving any option for presumption. In the insant case, the plaintiff had filed an application for withdrawal of the suit with permission to file a fresh suit, but, when the suit was permitted to be withdrawn, learned counsel appearing for the plaintiff had made a statement on oath to withdraw the suit without reserving any right to file a fresh suit. No such permission can be presumed in this case, even if permissible.

7. In the present case, it appears that the plaintiff had filed earlier suit on the ground of her personal requirement pleading therein :

'4. That the plaintiff needs the said suit premises for her personal use and occupation as the accommodation for plaintiff is inadequate for her and for her family members. The need of the plaintiff is comparatively much more than that of the defendant.'

She had also alleged that the demised premises had been sub-let to some other persons and that the defendant had failed to pay arrears of rent from July, 1981 up to March, 1985 thereby being guilty of three defaults of two months each within a period of 18 months making him liable for eviction under theJ.&K.; Houses and Shops Rent Control Act. In the subsequent suit, the plaintiff preferred her claim for defaults in the payment of rent after July, 1989. She pleaded her personal requirement in para 4 thereof stating therein:

'4. That the plaintiff needs the suit premises for her personal use and occupation as the premises which are under the occupation of the plaintiff are not sufficient to meet the demands of the plaintiff and her family members. The plaintiff has two grown up sons and both are studying in higher classes. The accommodation in possession of the plaintiff is not sufficient. There is no proper bed room for them as well as there is no proper place for study of the sons of the plaintiff. The need of the plaintiff is comparatively much more than that of the defendant.'

She further stated in para 7 of the fresh suit that 'In that circumstances and due to additional necessity which has arisen now the plaintiff had withdrawn the earlier suit and filed the suit against the defendant'. She added a further ground in para 8 of the plaint for seeking eviction as the defendant was allegedly using the kitchen for non-vegetarian purposes causing nuisance to the plaintiff who is stated to be an Aggarwal.

8. So far as' the suit of the plaintiff based upon the grounds of defaults is concerned, it cannot be said that the same was pertaining to the same subject-matter or based upon the same cause of action. Similarly, the suit filed on the grounds as mentioned in para 8 of the plaint was also based upon a new subject-matter and the cause of action. However, so far as the suit of the plainttif on the ground of her personal necessity is concerned, it cannot be said that it was based upon new cause of action. A perusal of the pleadings of the plaintiff in para 4 of the two plaints would clearly show that in the former plaint she had pleaded her requirement and in the subsequent suit she had given details for justification of seeking eviction. It is noteworthy that the subsequent suit was filed immediately after the withdrawal of the earlier suit. The suit of the plaintiff-respondent based upon her personal requirement was, therefore, not maintainable. The trial Court has, therefore,committed an error of law by holding whole of the suit as maintainable without referring to the pleadings of the parties on the basis of proposition of law as discussed herein above.

9. Accordingly this revision petition is partly allowed by modifying the order of the trial court. The suit of the plaintiff is held maintainable except on the ground of personal requirement. The issues framed with respect to the personal necessity of the plaintiff shall be deemed deleted.

10. Record of the trial court shall be immediately sent back where learned counsel for the parties have been directed to appear or cause the appearance of their clients on 20th May, 1992. Interim direction of the Court shall stand vacated and C.M.P. No, 445 of 1991 disposed


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