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2012 DIGILAW 555 (ALL)

Ghuraie v. Akaley and Others

2012-03-01

ABHINAVA UPADHYA

body2012
Abhinava Upadhya, J.;- Heard learned counsel for the petitioner and learned counsel for the respondents. By means of this writ petition, the petitioner has challenged the order of the Trial Court upon an objection raised by the petitioner in suit No.516 of 1997 that the suit is a second suit and is barred under Order IX Rule 9. The said objection was rejected by the Trial Court against which a revision was preferred and the revisional Court has also rejected the revision of the defendant-petitioner. Hence, this writ petition. The claim of the petitioner is that the respondents had filed a suit for permanent injunction in respect of a property said to have been allotted to it by the Gaon Sabha. The said suit was numbered as Suit No. 5 of 1995 with a prayer that the defendant along with two others be restrained from interfering with the possession of the property in question. The said suit was proceeded with and the issues were framed. However, on the date fixed the plaintiff did not appear but the petitioner-defendant was present and the suit was dismissed under Order IX Rule 8. The petitioner therein filed an application for recall under Order IX Rule 9. In the recall application, the petitioner stated that the Trial Court rejected the application by order dated 24.1.1998 whereas the case was fixed on 19.4.1996 for taking steps for service upon defendant No. 3 and after taking steps on 20.4.1996, the orders were reserved. The Court below has rejected the story set up by the plaintiff and has recorded a finding that the plaintiff was fully aware that proceedings were fixed for 19.4.1996. On that date, inspite of knowledge the plaintiff did not show up whereas the defendant-petitioner was present and after recording detailed finding, the Trial Court rejected the application. It is noteworthy that the plaintiff respondents did not challenged this order which has thus become final. It is stated that another suit being Suit No.516 of 1997 was filed in respect of same property. In this second suit petitioner-defendant who was also defendant in the earlier suit took an objection that for the same subject matter, between the same parties, the plaintiff had earlier filed the suit which was dismissed under Order IX Rule 8 and therefore, the second suit is barred under Order IX Rule 9. In this second suit petitioner-defendant who was also defendant in the earlier suit took an objection that for the same subject matter, between the same parties, the plaintiff had earlier filed the suit which was dismissed under Order IX Rule 8 and therefore, the second suit is barred under Order IX Rule 9. The said objection of the petitioner-defendant was rejected on the ground that the orders have not been passed on merits and therefore, the second suit is not barred. The revisional Court had also held the same. According to learned counsel for the petitioner, issues were framed in the matter and it was not the case where the suit was dismissed at the very threshold on account of non-taking of steps by the plaintiff. Learned counsel appearing for the respondents however, on the other hand submits that if he is not allowed opportunity to proceed with the matter in the second suit, his valuable rights would be permanently extinguished. According to him, the first suit was not decided on merits and therefore, the second suit is not barred. He claims that the suit was not between the same parties and subject matter was also not the same and secondly, the suit was in fact dismissed under Order IX Rule 3 and not under Order IX Rule 8 and therefore, the second suit is not barred. It has further been claimed that even if it is taken that the subject matter of both the suits are same yet on the date when the suit was dismissed for non-appearance, it was fixed for taking steps upon respondent no. 3 and the steps were not taken and the suit was dismissed at the very initial stage i.e. upon the threshold itself. According to learned counsel for the respondent, the language used under Order IX Rule 8 is " ..... the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed......." According to him, the word "hearing" means that after settlement of issues when the suit is ready for adjudication then only the question of hearing in the suit would arise. In the present case, the plaintiff had yet to take steps upon respondent No. 3 and therefore, there was no question of hearing of the suit. In the present case, the plaintiff had yet to take steps upon respondent No. 3 and therefore, there was no question of hearing of the suit. To strengthen his arguments learned counsel for the respondents has relied upon a decision in the case of Sudarshan Devi Vs. Sushila Devi reported in AIR 1999 (SC) 3688 . In the aforesaid case, the Apex Court while interpreting Section 20 (4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972 (Act No. 13 of 1972), (hereinafter referred to as "Act'), has defined the phrase 'First hearing' as it appears in Section 20 (4) of the 1972 Act. The same analogy cannot be assigned to the word 'hearing' used under Order IX Rule 8 and therefore, the decision relied upon by learned counsel for the respondents has no application in the present case. Secondly, learned counsel for the respondents has relied upon a decision in the case of M/s. Express Cables Private Limited Vs. N.S. Mukherjee and another reported in AIR 1983 Patna 269 wherein it was held that the order passed under Order IX Rule 8 would not bar fresh suit if the same was dismissed even when the issues had not been framed. In the present case, it is a clear contention of learned counsel for the petitioner which has not been disputed by learned counsel for the respondents that the issues were framed as such the said decision also has no application in the present case. Considering the facts and circumstances of the case, it appears that the proceedings in the earlier suit being Suit No. 5 of 1995 were proceeded with. Notices were issued and issues were framed and at that stage, the plaintiff did not appear on the date fixed although he had full knowledge of the said date and therefore the suit was dismissed. Plaintiff then filed a recall application under Order IX Rule 9 which was rejected by an order dated 24.1.1998. This order was not challenged by the petitioner before any forum therefore, the same became final. The order of dismissal of suit is thus an order under Order IX Rule 8 and Order IX Rule 9 clearly bars filing of second suit with regard to the same subject matter. This order was not challenged by the petitioner before any forum therefore, the same became final. The order of dismissal of suit is thus an order under Order IX Rule 8 and Order IX Rule 9 clearly bars filing of second suit with regard to the same subject matter. In the circumstances, the second suit No. 516 of 1997 was not maintainable and the Court below erred in rejecting the objection of the petitioner-defendant vide order dated 2.11.2000 (Annexure 7 to the writ petition) and the consequential order of the revisional Court dated 22.5.2002 (Annexure 9 to the writ petition) can not be sustained and are hereby, quashed. With the aforesaid observations, the writ petition is allowed. Parties shall bear their own costs.