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2008 DIGILAW 319 (PAT)

Ashutosh Singh v. Chandrawati Devi

2008-02-14

S.N.HUSSAIN

body2008
Judgment 1. Heard learned counsel for the peti tioner and learned counsel for opposite party no. 2 and 4. No one appears for the remaining opposite parties, although notices had been sent and validly served upon them. 2. This civil revision has been filed by the petitioner (one of the plaintiffs) challenging order dated 2.6.2005 by which the learned Munsif, Vaishali at Hajipur, rejected the plaintiffs plaint of Title Suit No. 13 of 2004 under the provision of Order XXIII, Rule 1 (4) of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity). 3. Earlier one of the plaintiffs of the aforesaid title suit who is opposite party no. 7 in the instant civil revision, namely Shambhu Sharan, had filed Title Suit no. 149 of 1996 against one of the defendants in the present suit, namely Dinanath Gupta (Opposite Party No. 4) and his wife only for grant of permanent injunction against the said two defendants of that suit. Subsequently Opposite Party No. 7, who was the plaintiff of that suit, withdrew the suit on 12.1.2004 without obtaining any permission of the court for filing a fresh suit. It transpires that subsequently Title Suit No. 13 of 2004 was filed by seven plaintiffs, namely petitioner and Opposite Parties No. 5 to 10 against four defendants, namely Opposite Parties No. 1 to 4, for declaration of title and also for declaration of their right of easement and also for removal of encroachment and constructions made by the defendants, but no relief of injunction was sought in the present suit. 4. However, at the time of hearing the suit in admission, the learned court below by its impugned order dated 2.6.2005 dismissed the suit under the provision of Or. 7, R. 11(d) of the Code holding that the suit was barred under the provision of Or. 23, R. 1(4) of the Code as one of the plaintiffs of the present suit had filed earlier a suit for the same property which was withdrawn without taking permission for filing a fresh suit. 5. 7, R. 11(d) of the Code holding that the suit was barred under the provision of Or. 23, R. 1(4) of the Code as one of the plaintiffs of the present suit had filed earlier a suit for the same property which was withdrawn without taking permission for filing a fresh suit. 5. From the averments made by learned counsel for the parties and the materials on record including the impugned order, it is quite apparent that the earlier suit (Title Suit No. 149 of 1996) was filed by only one plaintiff, whereas the subsequent suit (Title Suit No. 13 of 2004) was filed by seven plaintiffs including the sole plaintiff of the earlier suit. It also transpires that the earlier suit was filed against two defendants and only one of them is defendant in the present title suit alongwith three other defendants. It is also quite clear that the earlier suit was filed only for the purposes of injunction, whereas the present suit has not been filed for the relief of injunction, rather it had been filed for declaration of title and also for declaration of right of easement and for removal of encroachment and constructions from the suit premises. 6. Although the suit has been filed with respect to the same property, but it has to be seen that whether the subject matter is the same in both the suits. Although the expression subject matter is not defined in the Code, but definitely it does not mean the property. It has been decided in case of Rukma Bai V/s. Mahadeo Narayan, AIR 1917 Bom 10 that the expiession "subject-matter" in Or. 23, R. 1 of the Code means the series of acts or transactions alleged to exist giving rise to the relief claimed. Unless the cause of action as well as the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of subsequent suit is the same as that in the previous suit. Merely identity of some of the issues in the two suit does not bring about an identity of the subject matter in the two suits. Merely identity of some of the issues in the two suit does not bring about an identity of the subject matter in the two suits. It is also well settled in case of Singa Reddi V/s. Subba Reddi, AIR 1918 Mad 512 that where the cause of action and relief claimed in the second suit are not the same as the cause of action and 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. 7. In the instant case it is apparent that reliefs sought in the two suits are completely different, whereas the entire cause of action also cannot be said to be fully identical. Hence considering the aforesaid settled principles of law neither the subject matter of the two suits are same, nor the claims therein are entirely similar, due to which the provisions of Or. 23, R. 1(4) of the Code is not applicable in the instant case. 8. Considering the aforesaid facts and circumstances of the case, as well as the provisions of law, it is quite apparent that the learned court below has committed grave illegality in passing the impugned order as it had no jurisdiction to dismiss the suit on the said ground. Accordingly, this civil revision is allowed, the impugned order is set aside and the learned court below is directed to proceed with the case in accordance with law.