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2014 DIGILAW 773 (ALL)

NIRMALA DEVI v. STATE OF U. P.

2014-03-05

PANKAJ MITHAL

body2014
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Jaffar Naiyyar, Senior Advocate, assisted by Sri Himanshu Mishra, learned counsel for the petitioner and Sri Mohan Srivastava, learned Standing Counsel for the respondents. 2. The pleadings exchanged between the parties have been perused and with the agreement of the parties, the petition is being finally decided. 3. The petitioner has preferred this writ petition against the judgment and order dated 7.1.2012 passed by the Additional District Judge whereby he has set aside the order dated 6.5.2011 passed by the Court of first instance rejecting applications 53C in original suit No. 544 of 2010 and has allowed the Civil Revision No. 39 of 2011. 4. The petitioner instituted original suit No. 544 of 2010 for a decree of permanent injunction. In the said suit respondents moved application 53C for rejecting the plaint as barred by Order 9 Rule 9 C.P.C. on the allegation that the petitioner had earlier filed original suit No. 586 of 2007, Nirmla Devi v. State of U.P. and another, which was dismissed in default on 18.11.2009. The aforesaid application of the respondents was rejected by the Court of first instance but in revision the said order has been set aside. Accordingly, petitioner has invoked the writ jurisdiction of the Court. 5. The only question which surfaces for consideration in this petition is whether the present suit No. 544 of 2010 instituted by the petitioner is barred by Order 9 Rule 9 C.P.C. in view of dismissal of the earlier suit No. 586 of 2007. 6. In an attempt to answer the above question it is considered necessary to have a look upon Order 9 Rule 9 C.P.C. and the plaints of the two suits. Order 9 Rule 9 C.P.C. reads as under : “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 Court 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.” 7. It provides that where a suit is wholly or partly dismissed for want of prosecution, the petitioner shall be precluded from bringing a fresh suit in respect of “the same cause of action.” 8. In other words, a same plaintiff cannot institute a fresh suit on the same cause of action on which his earlier suit had been dismissed in default. 9. A plain and simple reading of the above provision reveals that the most relevant and important part in applying the above provision is “the same cause of action”. It is only if the two suits are based on the same cause of action that a subsequent suit would be barred by Order 9 Rule 9 C.P.C. 10. The Court of first instance after perusing the two plaints of the suits have come to the conclusion that the cause of action for the two suits are different, even the parties to the suit are at variance and the relief claimed in the two suits are also not the same. 11. The revisional Court while setting aside the judgment and order of the Court below has recorded a finding that in both the suits parties are almost same inasmuch as all the parties though slightly different, are instrumentalities of the State. Secondly, subject-matter of both the suits happens to be substantially the same and the cause of action also appears to be identical. 12. A bare perusal of the plaint of original suit No. 586 of 2007 would reveal that the aforesaid suit was filed by the petitioner arraying the State of U.P. through Collector, Mainpuri and Gram Pradhan, Gram Sabha village Jagrooppur, Pargana, Tehsil and District Mainpuri for a decree of permanent injunction restraining the defendants to the said suit from demolishing her Nali No. 331 and from widening the Kharanja so as not to encroach upon her land No. 325, 328 and 338 and to interfere in her peaceful possession over the same for which the cause of action had arisen on 1.9.07 when the petitioner’s request to the defendants to the suit not to demolish the Nali aforesaid and to encroach upon her land was turned down. 13. 13. A reading of the aforesaid plaint establishes that the cause of action in the said suit had arisen on 1.9.07 when the request of the petitioner not to demolish the Nali No. 331 and not to encroach upon her aforesaid land was not accepted. The cause of action is basically demolition of Nali and encroachment of land at the behest of Gram Sabha. 14. On the other hand, in the plaint of the present suit No. 544 of 2010 petitioner has arrayed State of U.P. through Collector, Mainpuri, Executive Engineer PWD and the Gram Sabha village Jagrooppur, Pargana, Tehsil and District Mainpuri as the defendants for a decree of permanent injunction in respect of Aaraji Nos. 325, 328 and 338 situate in village Jagrooppur, Pargana, Tehsil and District Mainpuri restraining the defendants to the said suit not to construct any road over the same without acquiring the said land or without paying the requisite compensation in respect thereof. The cause of action for the said suit is stated to have arisen on 3.5.2010 for the first time, on 4.6.2010 when a notification inviting tenders to construct a road over the said land was issued by the defendants to the suit, again on 30.4.2010 when the petitioner through her husband had given a representation to the defendant No. 2 to the suit and the same was replied on 29.6.2010, again in the month of April, 2010 when the respondents surveyed and measured the land and thereafter on 7.7.2010 when the petitioner gave notice under Section 80 C.P.C. to the defendants to the suit. 15. The cause of action of the aforesaid suit as such is construction of road without acquisition of the land and payment of compensation by the PWD. 16. A comparison of the causes for action involved in the two suits demonstrate that they are quite different though may pertain to the same land or part of it. 17. The first cause of action is in relation to the action of the respondents specially the Gaon Sabha in demolishing the Nali of the petitioner and encroaching upon the land of the petitioner by widening the Kharnja whereas in the subsequent suit, the cause of action is against the PWD, who was trying to construct a road without acquiring the land of the petitioner. 18. 18. The cause of action in the subsequent suit had arisen much after the cause of action had arisen in the earlier suit. 19. In view of the different causes for action in the above suits irrespective of parties being almost same or the dispute being about the same piece of land, the provisions of Order 9 Rule 9 C.P.C. would not apply and the present suit No. 544 of 2010 cannot be dismissed as barred in law. 20. There is another aspect of the matter. 21. The revisional Court has rejected the plaint simply on an application that the suit is barred by Order 9 Rule 9 C.P.C. without framing any issue on the above aspect. 22. A plaint of a suit can only be rejected as provided under Order 7 Rule 11 C.P.C. inter alia on one of the grounds where the plaint on the statements made therein appears to be barred by any law. 23. Thus, for applying Order 7 Rule 11 C.P.C. for rejecting a plaint, only the plaint allegations are supposed to be looked into and not the averments made in any application, written statement or any material produced in rebuttal and where consideration of such additional pleadings or material becomes necessary the proper course is to frame an issue and to decide it if necessary after allowing parties to adduce evidence on it. 24. In case cognizance of Order 9 Rule 9 C.P.C. was required to be taken on the basis of application of the defendants to the suit or any material produced by them, it was imperative to have formulated an issue regarding it and thereafter to have proceeded to decide the same. The Court below though took into consideration not only the plaint allegations but also the other material namely, the plaint of the earlier suit, still proceeded to decide it without framing an issue regarding suit being barred by Order 9 Rule 9 C.P.C. 25. The total approach of the revisional Court as such is alien to the well established procedure of law which vitiates its decision. 26. In view of above, the revisional Court exceeded its jurisdiction and materially erred in passing the impugned order dated 7.1.2012. 27. The total approach of the revisional Court as such is alien to the well established procedure of law which vitiates its decision. 26. In view of above, the revisional Court exceeded its jurisdiction and materially erred in passing the impugned order dated 7.1.2012. 27. Accordingly, the said order is hereby quashed and the Court below is directed to proceed and decide the suit on its own merits in accordance with law as expeditiously as possible if necessary after framing an issue on the above aspect. 28. The writ petition is allowed but with no order as to costs.