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2007 DIGILAW 2167 (PNJ)

Ralli v. Dhanna Singh (Dead) through LRs

2007-12-12

SATISH KUMAR MITTAL

body2007
JUDGMENT Satish Kumar Mittal, J. - This is a defendants Regular Second Appeal. Both the Courts below have decreed the suit of the plaintiff-respondent for declaration with consequential relief of permanent injunction, restraining the defendant from claiming any right in the suit property and from interfering in the possession of the plaintiff over the suit property. 2. In the present case, the plaintiff filed the aforesaid suit against the defendant claiming himself to be exclusive owner in possession of the disputed property. The defendant contested the suit and denied the title as well as possession of the plaintiff over the suit property. Both the Courts below, after taking into consideration the evidence led by the parties, which has been discussed in detail in the impugned judgments, came to the conclusion that the plaintiff is owner in possession of the suit property. This finding of fact has been recorded on the basis of overwhelming evidence, available on the record, including admission of the witnesses of the defendant. 3. Learned counsel for the appellant-defendant has not challenged the said finding of fact. He raised only one legal issue that earlier the respondent- plaintiff filed a suit for permanent injunction against the appellant- defendant, with regard to the same property. The said suit was dismissed by the then Sub Judge 1st Class, Dasuya, on 17.12.1980, while recording the finding that the plaintiff has failed to prove his exclusive possession on the suit property. Against the said judgment and decree, an appeal was filed by the plaintiff. The said appeal was dismissed by the first appellate Court, on 11.08.1982, by modifying the judgment and decree of the trial Court to the extent that the plaintiff was permitted to withdraw the suit with liberty to file fresh suit for declaration with consequential relief of injunction in respect of the subject matter of the suit. Learned counsel submits that since the judgment and decree of the trial Court was not set aside, therefore, the same will operate as res judicata against the plaintiff. In support of his contention, learned counsel for the appellant has relied upon a decision of the Lahore High Court in Shahu v. Mt. Rahmon, AIR 1938 Lahore 52. 4. I do not find any force in the contention of learned counsel for the appellant-defendent. 5. In support of his contention, learned counsel for the appellant has relied upon a decision of the Lahore High Court in Shahu v. Mt. Rahmon, AIR 1938 Lahore 52. 4. I do not find any force in the contention of learned counsel for the appellant-defendent. 5. Undisputed, on a joint statement made by learned counsel for the parties in the appeal arising out of the earlier suit, the first appellate Court modified the judgment and decree of the trial Court to the effect that suit of the plaintiff for permanent injunction was dismissed as withdrawn with liberty to the plaintiff to file a fresh suit for declaration with the consequential relief of injunction in respect of the subject matter of the suit. Not only this, the trial court was also directed to return the documents to the parties, which were produced by them. In view of the said modification of the judgment and decree of the trial Court in the earlier suit, no decree of dismissal of the suit remained operative. Therefore, it cannot be said at all that the judgment and decree dated 17.12.1980, passed by the trial Court in the earlier suit, will operate as res judicata. The judgment cited by learned counsel for the appellant is not applicable to the facts and circumstances of the instant case. In that case, the second appeal pending in the High Court was dismissed with permission to the plaintiff-appellant to bring a fresh suit, by passing the following order :- "The learned counsel for the parties agree that this appeal may be dismissed and that the plaintiff-appellant may be permitted to bring a fresh suit for possession, if so advised. We grant permission to bring a fresh suit and dismiss this appeal. Parties to bear their own costs throughout." Subsequently, when the second appeal arising out of the subsequent suit, came before the Lahore High Court, the said order was interpreted, while observing as under :- "Whatever the impression of the parties at the time when the order was made, the order itself does not refer to Order 23 Rule 1, nor is it so worded as to convey that it was intended by the Court to operate as an order under Order 23, Rule 1. As stated above, at the very outset the order says : "that the parties agree that the appeal may be dismissed" and while stating "that the plaintiff is permitted to bring a fresh suit" it concludes with the words "we dismiss the appeal." In these circumstances, it cannot be urged that the previous suit was withdrawn and not dismissed. It has been pointed out in various judgments of the Courts in India as well as of their Lordships of the Privy Council that if once a suit is dismissed, the Court ceases to have any further jurisdiction in the matter, and that consequently it is not empowered to grant permission to the plaintiff to institute a fresh suit on the same cause of action." The said judgment is not applicable to the facts and circumstances of the present case, as in this case, the first appellate Court disposed of the appeal, arising out of the earlier suit, by passing the following order :- "The learned counsel for the parties have made a joint statement today in the Court through which it has been prayed that the suit of the plaintiff for injunction be dismissed as withdrawn. The plaintiff has reserved his right to bring a fresh suit for a declaration with the consequential relief of injunction. In view of the joint statement made by the learned counsel for the parties today in Court, the suit is dismissed as withdrawn and to that extent the judgment and decree of the trial Court are modified but otherwise the appeal is dismissed. The plaintiff will be at liberty to bring a fresh suit for a declaration with consequential relief of injunction in respect of the subject matter of the suit. The documents, produced by the parties, will be returned to them by the trial Court. File be consigned and the records of the trial Court be returned." (Emphasis added) From the reading of the aforesaid order, it is clear that the judgment and decree of the trial Court was modified, the suit of the plaintiff was dismissed as withdrawn and the plaintiff was permitted to file a fresh suit for declaration with consequential relief of injunction. The trial Court was also directed to return all the documents, produced by the parties. The trial Court was also directed to return all the documents, produced by the parties. Once the suit of the plaintiff was dismissed as withdrawn with liberty to file a fresh suit, the filing of second suit is not barred under Order 23 Rule 1 CPC nor in the subsequent suit, the judgment and decree of the trial Court, passed in the earlier suit, which was dismissed as withdrawn with liberty to file a fresh suit, will operate as res judicata. In the present case, no such conclusion can be drawn that the previous suit was dismissed and it was not dismissed as withdrawn with liberty to file fresh one. In view of the above, there is no merit in the instant appeal and the same is hereby dismissed. Appeal dismissed.