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2014 DIGILAW 670 (PNJ)

Ram Chander v. Deepan

2014-04-03

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J. (Oral) - The defendants are in appeal against the judgment and decree of both the Courts below. 2. The defendants have raised two questions, namely, (i) whether the present suit is barred by the provisions of Order 23 Rule 1 (4)(b) of the Code of Civil Procedure, 1908 (for short ‘CPC’) as the plaintiffs had earlier filed a similar suit for injunction and withdrew the same at the stage of arguments when the defendant had also claimed costs for harassing them despite the fact that they were in possession? (ii) Whether the sale deeds Exhibits P-2 and P-3, on the basis of which the defendants have become the owners of the property in dispute, were required to be proved by the defendants or were per se admissible as held by the Courts below? 3. The brief facts of the case are that the plaintiffs filed suit for permanent injunction in order to restrain the defendants from interfering in their possession of a residential plot measuring 455 sq. yards situated in Lachhman Market, Jullana. The plaintiffs have alleged that they had purchased plot Nos.38 and 39 situated in Lachhman Market, Jullana from one Jhandu Ram son of Roop Chand of Village Kulazafargarh vide sale deed No.1022 dated 5.10.1972. Further, the vendor Jhandu Ram had purchased the aforesaid plots vide sale deed No.1427 dated 25.9.1967 from Smt. Kasturi Devi wife of Lala Ram Karan of village Budha Khera who had earlier purchased the said plots from one Teka Ram, Roshni Devi and Nanhu Ram vide sale deed No.1787 dated 1.9.1966, registered on 2.9.1996, for a consideration of Rs.3,000/-. The plaintiffs have further alleged that after purchasing the plots in the year 1972, they had raised boundary wall in the month of August, 1981 and were in physical possession. The plaintiffs had earlier filed a suit against the defendants on 24.8.1983 when they were trying to interfere in their possession but the said suit was withdrawn because of assurance of the respondents that they will not interfere in their possession. The plaint of the present suit was drafted on 27.8.1983 but the suit was filed on 30.8.1983 making a specific averment that the defendants are adamant to demolish the construction of the plaintiffs (boundary wall) and had alleged that the cause of action accrued to them for filing the present suit on 27.8.1983. 4. The plaint of the present suit was drafted on 27.8.1983 but the suit was filed on 30.8.1983 making a specific averment that the defendants are adamant to demolish the construction of the plaintiffs (boundary wall) and had alleged that the cause of action accrued to them for filing the present suit on 27.8.1983. 4. The suit was contested by the defendants denying the averments made in the plaint and additional objection was raised that the suit is barred by the principle of res judicata because the earlier similar suit was withdrawn by the plaintiffs. The plaintiffs filed replication, denying the objections made in the written statement. On the pleading of the parties, the learned trial Court framed the following issues:- “1. Whether the plaintiffs are owners and in possession of the suit property as alleged in paragraph No.1 to 4 of the plaint? OPP. 2. Whether the defendants No.1 and 2 are in possession of the suit property as alleged in Para No.3 of the written statement? OPD. 3. Whether the suit is barred by principle of res judicata? OPD. 4. Whether the defendants No.3 to 5 are neither necessary for proper parties? If so to what effect ? OPD. 5. Whether the suit is barred for the reason disclosed in paragraph No.14 of the Written Statement? OPD. 6. Relief.” 5. Both the parties adduced their oral as well as documentary evidence. The trial Court decided issue Nos. 1 and 2 in favour of the plaintiffs regarding ownership and possession but insofar as issues No.3 and 5 are concerned, those were decided against the plaintiffs and in favour of the defendants on the ground that the plaintiffs had not disclosed the filing of the earlier suit in the replication and on equity, the suit was dismissed. The plaintiffs, thus, filed the first appeal against the finding of the trial Court on issue Nos. 3 and 5 whereas the defendants filed cross-objections challenging the finding of the trial Court on issue Nos.1 and 2. 6. The Appellate Court dismissed the cross-objections and allowed the appeal of the plaintiffs while setting aside the findings recorded by the trial Court on issue Nos.3 and 5. Accordingly, the present second appeal has been filed. 7. 3 and 5 whereas the defendants filed cross-objections challenging the finding of the trial Court on issue Nos.1 and 2. 6. The Appellate Court dismissed the cross-objections and allowed the appeal of the plaintiffs while setting aside the findings recorded by the trial Court on issue Nos.3 and 5. Accordingly, the present second appeal has been filed. 7. Learned counsel for the appellants has submitted that the suit of the plaintiffs is not maintainable in the present form as it is barred under Order 23 Rule 1 (4) (b) of the CPC. It is contended that when the earlier suit, filed in the year 1981 on the same subject-matter was withdrawn, a specific statement was made by the defendants that they are in possession of the suit property and have been harassed unnecessarily by the plaintiffs for which they should be compensated with costs. It is further submitted that while allowing the withdrawal of the suit, costs of Rs.25/- was imposed upon the plaintiffs. He has, thus, submitted that once this statement is made by the defendants that they are in possession of the suit property, which is not controverted at that time by the plaintiffs when the suit was withdrawn and there is no evidence brought on record by them that how they have entered into possession thereafter when the present suit is filed within 4/5 days, the suit on the same subject-matter was not maintainable. The second submission made by learned counsel for the appellants is that the appellate Court has erred in relying upon the certified copies of the sale deeds Exhibits P-2 and P-3 which are purported to have been executed by the Predecessor-in-interest of the plaintiffs. For this, learned counsel for the appellants has relied upon the Full Bench judgment of this Court passed in the case of Gutari vs. Shiv Charan and others, 1980 All India Hindu Law Reporter 273. It is submitted that the said documents are not public documents and do not fall within the definition of Section 74 (e) and (f) of the Indian Evidence Act. 8. It is submitted that the said documents are not public documents and do not fall within the definition of Section 74 (e) and (f) of the Indian Evidence Act. 8. On the other hand, learned counsel for the plaintiff-respondents has submitted that the earlier suit was filed on the basis of the cause of action accrued to the plaintiffs at that time in the year 1981 when the defendants were interfering in their possession and the suit was withdrawn in the year 1983 on the assurance given by the defendants that they would not interfere in their possession and a specific statement was made on their behalf and recorded by the trial Court when the suit was allowed to be withdrawn. It is further submitted that when the defendants again started interefering in their possession, the cause of action to file the present suit had arisen on 27.8.1983 and there was no change in the pleadings except for the change in the cause of action. In this regard, he has referred to the following judgments: (i) Sheikh Allanaur vs. Mst. Mohd.-Ul-Nisa and others, 1961 PLR 775 , (ii) Vallabh Das vs. Dr. Madanlal and others, AIR 1970 (SC) 987 (iii) Pandillapalli Singa Reddi vs. Yeddula Subba Reddi and others, 1917 AIR (Madras) 512. 9. I have heard learned counsel for the parties and perused the records with their able assistance. In respect of the first question, raised by learned counsel for the appellants, it would be relevant to refer to the order which has been passed by the Court at the time when the suit was allowed to be withdrawn which is on record as Exhibit DA and reads thus:- “Previous costs paid. The learned counsel for the plaintiff and plaintiff No.1 Deepan have made a statement that the suit be dismissed as withdrawn because there is no more apprehension at the hands of the defendants requiring interference of the possession of the plaintiffs over the suit property. The counsel for the defendants says that the defendants are in possession of the suit land and they have been harassed all for nothing. He has prayed for costs. The suit is dismissed as withdrawn. He has prayed for costs. The suit is dismissed as withdrawn and the plaintiffs are burdened with Rs.25/-. The file be consigned to the record room.” 10. He has prayed for costs. The suit is dismissed as withdrawn. He has prayed for costs. The suit is dismissed as withdrawn and the plaintiffs are burdened with Rs.25/-. The file be consigned to the record room.” 10. In order to appreciate the argument raised by learned counsel for the parties, it would be relevant to refer to the provisions of Order 23 CPC. “[1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to subrule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal effect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (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 a 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 instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]” 11. There is no dispute that plaintiffs had earlier filed a similar suit for permanent injunction against the defendants when they were trying to interfere in their possession but at that time, the cause of action had arisen to them in the year 1981. The suit reached to the stage of arguments when the plaintiffs made a statement that they do not want to continue with the suit because there is no more apprehension at the hands of the defendants regarding interference. The pleadings in this regard have also been made in the plaint that the defendants had given an assurance that they would not interfere in the possession of the plaintiffs and in this background, the suit was withdrawn, but at the same time, when the suit was withdrawn, a statement was made by the defendants that they have been unnecessarily harassed by the plaintiffs all through though they are in possession and they prayed for imposition of costs upon the plaintiffs for filing a frivolous suit and accordingly, the trial Court burdened the plaintiffs with Rs.25/- as costs. Order 23 Rule 1 (4)(b) says that if a party withdraws from a suit or part of a claim without the permission referred to in sub Rule (3), then 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. 12. The word “subject-matter” is not defined in the Civil Procedure Code. Further, the said words have been explained and interpreted by judicial precedents and in this regard, I would first like to rely upon the judgment of this Court in the case of Sheikh Allanaur (supra). The term “Subject-matter” occurring in sub-clause (3) of Order 23, rule 1, CPC, would mean ‘the plaintiff’s cause of action for his suit.’ Similarly, in the case of Vallabh Das (supra), the Hon’ble Supreme Court has held that “the expression “subject-matter” is not defined in the CPC. It does not mean property. The term “Subject-matter” occurring in sub-clause (3) of Order 23, rule 1, CPC, would mean ‘the plaintiff’s cause of action for his suit.’ Similarly, in the case of Vallabh Das (supra), the Hon’ble Supreme Court has held that “the expression “subject-matter” is not defined in the CPC. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same, as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.” In the case of Pandillapalli Singa Reddi (supra) also, it has been held that “without attempting an exhaustive definition of all that may be included in the term “subject-matter”, we are of the opinion that where, as in the present case, the cause of action and the relief claimed in the second suit are not the same as the cause of action and the 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.” 13. The consistent view of the Courts is that the expression “subject-matter” does not relate to the property rather it relates to the right in the property. The right in the property in the present case is the right to possession and right to possession is mandated from the ownership of the property by the plaintiffs. The expression includes the cause of action and the relief claimed, meaning thereby that both the things i.e. cause of action and relief claimed have to be construed together and if the cause of action and relief claimed in the previous suit and subsequent suit are not same, then the subsequent suit is not barred by Order 23 Rule 1(3) of the CPC. 14. Reverting back to the facts of the present case, the cause of action in the earlier suit was of the year 1981 when the defendants were trying to interfere in the possession of the plaintiffs whereas the cause of action in subsequent suit is of the year 1983. 14. Reverting back to the facts of the present case, the cause of action in the earlier suit was of the year 1981 when the defendants were trying to interfere in the possession of the plaintiffs whereas the cause of action in subsequent suit is of the year 1983. Therefore, the date of the cause of action in both the suits is different and as such, the provisions of the Order 23 Rule 1(3) are not applicable to the present controversy even if the defendants had claimed that they are in possession and no contradictory statement is made by the plaintiffs at the time when the suit was withdrawn because now ultimately both the Courts have recorded that the plaintiffs are in possession. Thus, the first question is decided in the negative against the defendants. Insofar as the second question about the production of certified copies of Exhibits P-2 and P-3 by the plaintiffs is concerned, learned counsel for the plaintiffs has drawn the attention of this Court to an order dated 18.4.1985 passed by the trial Court which reads as under:- “An application has been filed by the plaintiffapplicants to prove the sale deeds dated 2.9.66 and 25.9.67 by way of secondary evidence. The application has been contested by the defendants. It has been stated that the plaintiffs were bound to call Smt. Kasturi and produced the sale deeds, if any, in her favour. It has also been averred that Jhandu has also not stated in clear terms that he had lost the same. It has been stated that no cogent reason has been given by the plaintiffs to lead secondary evidence. I have gone through the material on file and heard the arguments addressed by the learned counsel for the parties. The plaintiff Depan has filed an affidavit to this effect that the original sale deeds dated 2.9.66 executed by Tek Ram, Roshni etc. and sale deed dated 25.9.67 executed by Smt. Kasturi Devi in favour of Jhandu Ram have been lost and are untraced. An affidavit has also been filed that both the sale deeds are not in possession of the plaintiffs. PW 4 Jhandu Ram has also deposed on oath that he has not been able to trace the sale deeds in question. An affidavit has also been filed that both the sale deeds are not in possession of the plaintiffs. PW 4 Jhandu Ram has also deposed on oath that he has not been able to trace the sale deeds in question. I feel that the circumstances on record justify that the plaintiffs be allowed to prove the sale deeds in question by way of secondary evidence. Consequently, the application is accepted. To come up on 23.7.85 for remaining evidence of the plaintiffs. Announced. S.J.I.C., Jind. Dt. 18.4.85.” 15. Thus, the aforesaid order has been passed when the application was filed by the plaintiffs on the ground that the sale deeds Exhibits P-2 and P-3, which were in possession of their vendors, could not be traced and for that purpose, even one of the vendors of the plaintiff, namely, Jhandu Ram had appeared in the witness box as PW-4 and stated on oath that he had sold the land in dispute vide the sale deed Exhibit P-1 in favour of the plaintiffs and delivered possession thereof and was in possession of the original sale deeds which has been lost. In this regard, it is also submitted by the learned counsel for the plaintiffs that the Full Bench Judgment relied upon by the learned counsel for the defendants in the case of Gutari (supra) is also not applicable as the said judgment decides some other controversy. In order to appreciate this argument as well, I would first give the facts in brief of the said case. 16. The Full Bench decided the question in a Civil Revision which was brought to this Court by the plaintiff. The case of the plaintiff was that he had inherited the estate of one Prabhu son of Dhani Ram deceased on the basis of a registered Will. A copy of the Will obtained from the Sub- Registrar’s office was annexed to the plaint. Thereafter, the plaintiff moved an application for permission to lead secondary evidence of the original Will on the ground that the original Will had been lost because of theft. The trial Court did not accept the plaintiff’s claim that the original Will had been lost and dismissed the application. Thereafter, the plaintiff moved an application for permission to lead secondary evidence of the original Will on the ground that the original Will had been lost because of theft. The trial Court did not accept the plaintiff’s claim that the original Will had been lost and dismissed the application. The said order of the trial Court was challenged in revision before this Court on the ground that the loss of the original Will had to be established before secondary evidence is led to prove the existence, condition and the contents thereof could be let in for the original Will being a registered document fell in the category of documents referred to in clauses (e) and (f) of Section 65 of the Evidence Act, which could be proved by adducing secondary evidence in the form of certified copy thereof without first establishing the factum of loss of such documents. The ratio of law laid down by the Full Bench is contained in para 36 of the said judgment, which reads thus:- “36. For the reasons aforesaid, I hold that the original copy of a registered document does not fall in the category of documents referred to in clauses (e) and (f) of Section 74 and, therefore, the secondary evidence thereof cannot be permitted unless where the case pleaded is that the original is lost and the loss is accounted for to the satisfaction of the Court, and where it is shown to be in existence, then only when the requirements of clauses (a), (b) and other part of clause (c) are complied with. Thus the question referred to is answered accordingly.” 17. In my considered opinion, the judgment relied upon by the learned counsel for the defendants in the case of Gutari (supra) is not at all applicable to the facts and circumstances of the present case. Accordingly, the second question raised by the learned counsel for the appellants is also decided against them. 18. No other point has been urged before this Court in the present case. 19. Hence, finding no merit in the present appeal, the same is hereby dismissed. ---------0.B.S.0------------ —————————