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2007 DIGILAW 443 (UTT)

Yasin and another v. Smt. Sarif and others

2007-08-16

PRAFULLA C.PANT

body2007
JUDGMENT This appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, (herein after referred as C.P.C.) is directed against the judgment and decree dated 25-01-1985, passed by Additional District Judge, Saharanpur, in civil appeal No. 323 of 1980, whereby judgment and decree dated 21-08-1980, passed in original suit No. 179 of 1973, by trial court (Civil Judge, Roorkee) is set aside and the suit is dismissed. (Earlier Tehsil-Roorkee was part of District Saharanpur). 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that in earlier round of litigation, a suit No. 30 of 1969, was instituted by the plaintiffs before Munsif, Roorkee, against the defendants but the plaint in said suit was returned to the plaintiffs on the ground that the suit was beyond pecuniary jurisdiction of said court. Thereafter another suit No. 15 of 1971, was instituted by the plaintiffs for mandatory injunction against the defendants directing them to remove 'MALWA’ (building material) from the disputed land. The said suit was dismissed in default of the plaintiffs. On the application of plaintiffs for restoration, suit No. 15 of 1971, was directed to be restored on payment of Rs. 75/- as costs to the defendants. It appears that plaintiffs filed a revision against the imposition of costs of Rs. 75/-, which was reduced by the revisional court to Rs. 50/-. But it appears that even that cost of Rs. 50/- was not paid and the suit No. 15 of 1971, stood dismissed. Plaintiffs' case is that meanwhile a panchayat was held in the village and a compromise was arrived at whereby plaintiffs were directed to pay Rs. 500/- to the defendants whereafter the defendants were required to remove their 'MALWA’ (building material) within a period of 5-6 months from the land in dispute. Finally original suit No. 179 of 1973, is instituted by the plaintiffs as Forma Pauperis against the defendants again for mandatory injunction, directing the defendants to remove 'MALWA’ (building material) from the land in suit shown by the letters ABCD in the present plaint map, situated in Village Ahmadpur Kadach, Pargana Jwalapur, Tehsil Roorkee with the pleading that the plaintiffs are owners of the land and the defendants have failed to remove the 'MALWA’ from the land in suit even after receiving Rs.500/- from the plaintiffs, as directed by the panchayat. During the pendency of the suit, an alternative relief was sought for delivery of possession of land to the plaintiffs. 4. The defendants (present respondents No.1 to 5) contested the suit and denied the allegations contained in the plaint. However, it is admitted in the written statement by the defendants that earlier suit No. 30 of 1969, was instituted by the plaintiffs in respect of same land in which plaint was returned to the plaintiffs on the ground that the valuation of suit was beyond the pecuniary jurisdiction of Munsif Roorkee. It is also admitted by the defendants that thereafter plaintiffs instituted suit No. 15 of 1971, before Civil Judge, Roorkee and said suit was dismissed in default of the plaintiffs. It is further admitted that on application of the plaintiffs, the restoration of suit was directed on the condition that the plaintiffs would pay Rs. 75/- as costs to the defendants. It is also admitted that plaintiffs preferred revision against the imposition of costs and the revisional court reduced the costs to Rs. 50/- only, but the same also remained unpaid. Hence suit No. 15 of 1971 remained dismissed. As to the rest of contents in the plaint, the same are denied. In the additional pleas, the defendants pleaded that it is wrong to say that the plaintiffs are owners in possession of the land in suit. It is further pleaded that in fact the land in suit was a khudkast land of the defendants over which the defendants 'established their abadi since March, 1968. It is alleged that the foundation was laid in March 1968, and the walls were raised between March 1968 and July 1968. Denying that in the pahchayat, it was agreed that on payment of Rs. 500/- by the plaintiffs to the defendants, they were required to remove the construction, it is stated that neither such agreement was arrived at nor any payment was made. It is also pleaded that the suit is barred by time. It is further pleaded that suit is barred by Section 38 and 41 of Specific Relief Act, 1963. 5. On the basis of the pleadings of the parties, the trial court framed following issues : 1. Whether the plaintiffs are owners of the land in dispute, as alleged by them ? 2. It is further pleaded that suit is barred by Section 38 and 41 of Specific Relief Act, 1963. 5. On the basis of the pleadings of the parties, the trial court framed following issues : 1. Whether the plaintiffs are owners of the land in dispute, as alleged by them ? 2. Whether the parties entered into any compromise on 20-01-1972, as pleaded in plaint, If so, whether the plaintiffs paid Rs. 500/- to the defendants in terms of compromise ? If not, its affect ? 3. Whether the suit is barred by Order IX Rule 9 read with Section 11 of C. P. C. ? 4. Whether the suit is barred by Section 38 and 41 of Specific Relief Act, 1963 ? 5. What is the affect of dismissal of suit No. 15 of 1971 ? 6. Whether the suit is barred by time? 7. Whether the suit is not properly valued as alleged in the written statement? If so, its affect? 8. To what relief, if any, the plaintiffs are entitled? 6. After recording the evidence and hearing the parties, the trial court (Civil Judge, Roorkee), held that the plaintiffs are owners of land in dispute and decreed the suit No. 179 of 1973 against the defendants vide its judgment and decree dated 21-08-1980. Aggrieved by said judgment and decree, defendants preferred appeal (No. 323 of 1980) before District Judge, Saharanpur. The lower appellate court (Additional District Judge, Saharanpur) to whom the said appeal was transferred, after hearing the parties, gave the finding that plaintiffs did not pay Rs. 500/-, as pleaded by them to the defendants in pursuance of the alleged compromise in the panchayat. To that extent, it affirmed the finding of the trial court. The lower appellate court found that the suit is barred by provision of Order IX Rule 9 C.P.C. It further found that plaintiffs' ownership is not proved on the record. On the point of limitation, the lower appellate court concurred with the trial court that the suit is not barred by time. The lower appellate court found that the suit is barred by provision of Order IX Rule 9 C.P.C. It further found that plaintiffs' ownership is not proved on the record. On the point of limitation, the lower appellate court concurred with the trial court that the suit is not barred by time. On the grounds that the plaintiffs failed to prove their title on the land in suit and also that the subsequent suit is barred under Order IX Rule 9 C.P.C., the appeal was allowed by lower appellate court vide its impugned judgment and order dated 25-01-1985 in civil appeal No.323 of 1980, and the suit of the plaintiffs is dismissed. Hence this second appeal was filed by the plaintiffs before Allahabad High Court on 23-04-1985, without payment of required court fee which is now paid. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 7. On 05-04-2007, this appeal was admitted but no substantial question of law was formulated. However, this Court exercising the powers under sub-section (4) read with proviso to sub-section (5) of Section 100 C.P.C., formulates following substantial questions of law involved in this appeal on which the parties addressed the court at length: 1. Whether the lower appellate court committed error of law in holding that the suit is barred by Order IX Rule 9 C.P.C. ? 2. Whether the relief claimed by the plaintiffs (present appellants) is also barred by Order II Rule 2 C.P.C. ? 8. Answers to both the substantial Questions of law : Rule 8 and 9 of Order IX C.P.C., read as under : "8. Procedure where defendant only appears :- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. Decree against plaintiff by default bars fresh suit- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. 9. Decree against plaintiff by default bars fresh suit- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the cause that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." It is admitted in the pleadings of the parties that earlier original suit No. 15 of 1971, was instituted by the plaintiffs against the defendants for same relief of mandatory injunction, directing the defendants to remove the 'MALWA’ (building material) from the land in suit. It is also admitted in the pleadings of the parties that said suit was dismissed in default of the plaintiffs. It is also admitted in the plaint and the written statement that on restoration application of the plaintiffs, the suit No. 15 of 1971 was directed by the trial court to be restored on payment of Rs. 75/- as costs against which plaintiffs themselves filed a revision to get the costs reduced. It is also admitted to the parties that after the amount of costs was reduced to Rs. 50/- by the revisional court, the plaintiffs did not pay even the reduced costs and suit No. 15 of 1971 remained dismissed. 9. In view of Sub-rule (1) of Ru1e 9 of Order IX of C.P.C., quoted above, it is clear that the plaintiffs stood precluded from bringing fresh suit in respect of same cause of action. Shri A.K. Sharma, learned counsel for the appellants, argued that cause of action in the present suit is not the same. It is contended that in the earlier suit No. 15 of 1971, the date of cause of action mentioned was 15-07-1968 and 17-07-1968 while in the subsequent suit i.e. original suit No. 179 of 1973, the date of cause of action is 20-10-1972 and 05-04-1973. It is contended that in the earlier suit No. 15 of 1971, the date of cause of action mentioned was 15-07-1968 and 17-07-1968 while in the subsequent suit i.e. original suit No. 179 of 1973, the date of cause of action is 20-10-1972 and 05-04-1973. To examine the contention of the learned counsel for the appellants, I have gone through the record of the case. Had there been a suit for prohibitory injunction, it could have been said that the plaintiffs were threatened twice of being interfered in their possession over the land in suit. But that is not the case here. In the earlier suit also the plaintiffs had sought relief of mandatory injunction, directing the defendants to remove 'MALWA’ (building material) from the land in suit and in the subsequent suit also the prayer is the same. It is not the case of the plaintiffs that earlier constructions raised or building material kept was removed by the defendants and subsequently again new constructions are made over the land in suit. That being so, in fact the cause of action to the plaintiffs remained the same in both the suits as it is nowhere been pleaded by the plaintiffs that after filing of the earlier suit and before subsequent suit was instituted, defendants ever removed their constructions from the land in suit. As such, the present suit in question is clearly barred by sub-rule (1) of Rule 9 of Order IX of C.P.C. 10. On behalf of the appellants, it is further submitted that in the earlier suit then~ was no relief of possession sought by the plaintiffs while in the present suit relief of possession is also sought and as such, the suit cannot be said to be barred by aforesaid provision. I am unable to accept the argument of the learned counsel for the appellants for the reason that it is the cause of action, which is required to be seen for the purposes of Order IX Rule 9, which precludes subsequent suit. Apart from this, it is pertinent to mention here that relief in present suit No. 179 of 1973 itself shows that the suit was instituted only for mandatory injunction and subsequently during the pendency, relief of possession was added that too in alternative. Apart from this, it is pertinent to mention here that relief in present suit No. 179 of 1973 itself shows that the suit was instituted only for mandatory injunction and subsequently during the pendency, relief of possession was added that too in alternative. Here it is pertinent to mention that Order II Rule 2 of C.P.C. provides that every suit shall include the whole of the claim, which the plaintiffs are entitled to make in respect of a cause of action. Sub-rule (2) of Rule-2 of Order II C.P.C. further provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Since the relief of possession in the present case is in fact a consequential relief, as such, the relief of possession sought in alternative by the plaintiffs itself stands barred by aforesaid Sub-rule (2) of Rule 2 of Order II C.P.C. Both the substantial questions of law are answered against the plaintiffs/appellants. 11. It is also pertinent to mention here that the finding of fact recorded by the lower appellate court that the plaintiffs' ownership over the land in dispute is not proved, cannot be disturbed by this Court I in second appeal unless the same is perverse or against the evidence on record. On perusal of the evidence on record, this Court does not find any perversity in the finding, as the same is based on evidence on record. 12. For the reasons, as discussed above, this appeal is liable to be dismissed. The same is dismissed. No order as to costs.