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2013 DIGILAW 849 (MP)

Ram Prasad v. Rajendra Singh

2013-07-23

M.K.MUDGAL

body2013
JUDGMENT MUDGAL, J. -The appellant/plaintiff has filed the appeal under Section 96 of the Civil Procedure Code, being aggrieved by the judgment and decree dated 12.4.2001 passed by the Court of Additional District Judge, Gohad District Bhind in Civil Suit No.1 1 A/2000, dismissing the suit for declaration of title permanent injunction and cancellation of sale deed dated 5.4.2000 executed by Shyam Lal in favour of defendant No.1 Rajendra Singh. In this appeal plaintiff is referred as appellant and defendants as respondents. 2. The admitted facts are that the plaintiff Ramprasad and defendants No.1 Rajendra Singh, defendant No.2 Ram Lakhan are real brothers and defendant No.3 Smt. Panchobai is the mother, and Shyam Lal was the father of them. The disputed agricultural land was recorded in the name of Shyam Lal as Bhoomiswami. Earlier the plaintiff filed a suit No.8A/86 for declaration of title to ¼ share in the disputed agricultural land and permanent injunction before the Court of Additional District Judge, Gohad against his father Shyam Lal staling that the disputed agriculture land is ancestral property. His father inherited the disputed property from his father. The said suit was withdrawn vide order dated 22.3.1987 in Lok Adalat. After dismissal of the suit the father of the plaintiff Shyam Lal executed a sale deed dated 5.4.2000 in favour of his son Rajendra Singh defendant No.1. 3. Facts in brief of the plaint are that, the disputed agricultural land is the ancestral property of plaintiff and the father Shyam Lal who inherited the disputed agricultural land from his father, thus the plaintiff has ¼ share in the disputed land being ancestral property. Shyam Lal has no right to sale the entire disputed agricultural land to defendant No.1. Hence, suit for the relief as stated earlier was filed on 9.5.2000 against the defendants. 4. The defendants have filed an objection under Order 7 Rule 11 of the Civil Procedure Code before the trial Court, stating that the suit filed by the plaintiff was not maintainable, as the earlier suit filed by him was dismissed vide order dated 22.3.1987 as withdrawn. Hence, the earlier order dismissing the suit has the effect of res-judicata. That objection was decided by the impugned order dated 11.4.2001 and the suit was dismissed holding that suit filed by the plaintiff is barred by res-judicata under Section 11 of Civil Procedure Code. 5. Hence, the earlier order dismissing the suit has the effect of res-judicata. That objection was decided by the impugned order dated 11.4.2001 and the suit was dismissed holding that suit filed by the plaintiff is barred by res-judicata under Section 11 of Civil Procedure Code. 5. Learned counsel for the appellant submits that the impugned order passed by the learned trial Court is contrary to the provision of law as the earlier suit No. 8A/86 was not finally heard and decided on merits. The said suit was withdrawn by the plaintiff/ appellant on the basis of compromise. Hence, the suit ought to have not been dismissed by the learned trial Court by the impugned order. Learned counsel requests that the impugned order be set aside and case be remanded back for fresh disposal as per provisions of law. 6. No one is appearing on behalf of the respondents to pursue the appeal. Arguments of the appellant's counsel were considered. 7. On perusal of the record of the trial Court, it is indisputably clear that the former suit No.08A/86 filed by the plaintiff/ appellant for the same relief as stated by him in the instant suit No.11 A/2000. The plaintiff filed earlier suit for declaration of title to ¼ share in the disputed agricultural land against his father Shyam Lal The said suit was withdrawn vide order dated 22.3.87 by the appellant /plaintiff before Lok Adalat without seeking permission for filing a fresh suit on the same cause of action. It is true that the suit 8A/86 was not decided on merits by the trial Court. For application of Section 11 of the Civil Procedure Code, it is necessary that the matter should be finally heard and decided by a competent Court. Hence, the opinion of the trial Court for application of res-judicata in this case is not proper as per the provision of Section 11 of the Civil Procedure Code which is an under- "11. For application of Section 11 of the Civil Procedure Code, it is necessary that the matter should be finally heard and decided by a competent Court. Hence, the opinion of the trial Court for application of res-judicata in this case is not proper as per the provision of Section 11 of the Civil Procedure Code which is an under- "11. Res judicata.-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation l.-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto." However, the suit filed by the plaintiff was not maintainable. It was barred by Sub Rule 4 of Rule 1 of Order 23 of Civil Procedure Code. The provision of the aforesaid rule is as under: Withdrawal of suit or abandonment of part of claim- 1..... 2..... 3... 4.Where the plaintiff (a) abandons any suit or part of claim under sub- rule (1) or (b) withdraws from a suit or part of claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. 8. On perusal of the said provision, it becomes clear that the suit filed by the plaintiff is precluded by the provision of Sub Rule 4 Rule 1 of Order 23 of Civil Procedure Code, as former suit was withdrawn by the plaintiff without seeking permission for filing a suit for the same cause of action relating to the same subject matter where the suit is withdrawn without seeking permission the subsequent suit shall be precluded on the same cause of action. As held in 2000 (II) MPWN 31, Dayachand v. Kesarbai. 9. As held in 2000 (II) MPWN 31, Dayachand v. Kesarbai. 9. It is correct that the former suit was filed by the plaintiff against his father and the instant suit has been filed against his brother defendant No.1 but the status of defendant No.1 would be the same as that of his father because the defendant No.1 has purchased the disputed land from the deceased father Shyam Lal The defendant No.1 being transferee of the property has stepped in the shoes of his father. Hence, the plaintiff cannot claimed that the parties of both the suit are not same. 10. Therefore, it is concluded that the suit filed by the plaintiff was not maintainable. Hence, the lower Court has not committed any mistake in dismissing the suit. Accordingly, thappeal has no substance and is hereby dismissed.