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2015 DIGILAW 149 (GAU)

Krishna Kanta Oja v. Gadadhar Oja and Ors.

2015-02-09

SUMAN SHYAM

body2015
Suman Shyam, J. 1. This Second Appeal has been directed against the judgment dated 30.09.2010 and decree dated 13.10.2010 passed by the learned Civil Judge (Senior Division), Barpeta, in Title Appeal No. 7/2009 affirming the judgment and decree dated 06.01.2009 passed by the Munsiff No. 2, Barpeta, in Title Suit No. 41/2007. The facts of the case is that the respondent Nos. 1 and 2 had filed Title Suit No. 82/2003 in the Court of Munsiff No. 2, then known as Civil Judge (Junior Division) No. 2, against the present appellant praying for a decree declaring right, title and interest over the suit land, for recovery of khas possession and for other consequential reliefs. Thereafter, the plaintiff Nos. 1 and 2 i.e. the respondent Nos. 1 and 2 herein, had made an application before the Court under the provisions of Order XXIII Rule 3(b) CPC with a prayer for permitting them to withdraw the suit. In the said application liberty to file a fresh suit was sought for only by the plaintiff No. 2 i.e. Hiralal Oja. Taking note of such prayer the learned Munsiff No. 2, Barpeta passed an order dated 14.06.2006 permitting the plaintiffs to withdraw the suit. Liberty to file fresh suit was, however, only granted to the plaintiff No. 2/respondent No. 2 herein. Thereafter, the plaintiff No. 1/respondent/respondent No. 1 had filed a fresh suit in the Court of Munsiff No. 1, Barpeta against the plaintiff No. 2/respondent No. 2 as one of the defendants thereby also impleading the defendants in the previous suit as party to the suit. The suit was numbered as Title Suit No. 152/2006. The said suit was subsequently transferred to the Court of Munsiff No. 2, Barpeta and it was re-numbered as Title Suit No. 41/2007. A perusal of the averments made in the plaint filed in both the suits would go to show that the subject matter involved in both the suits were one and the same, the only substantial difference being that the plaintiff No. 2 in the previous suit was impleaded as the defendant No. 1 in the subsequent suit. 2. A perusal of the averments made in the plaint filed in both the suits would go to show that the subject matter involved in both the suits were one and the same, the only substantial difference being that the plaintiff No. 2 in the previous suit was impleaded as the defendant No. 1 in the subsequent suit. 2. The defendants in Title Suit No. 41/2007 filed written statement wherein in para 17 an objection has been raised to the effect that the suit filed by the plaintiff No. 1 of the previous suit was not maintainable since no liberty was granted to him by the earlier Court. Although there was a pleaded objection within the meaning of Order XXIII Rule 1(1)(4). It appears that the learned trial Court did not frame any issue to decide as to whether the suit was maintainable. Mr. Medhi submits that the plaint filed in Title Suit No. 41/2007 was later on amended whereby the defendant No. 1, Hiralal Oja was impleaded as the plaintiff No. 2. There was transposition of defendant No. 1, Hiralal Oja as the plaintiff No. 2 in the said suit and that may be the reason why the learned trial Court did not consider the necessity of framing any issue on this point. The trial Court had decreed the suit filed by the plaintiff Nos. 1 and 2 i.e. respondent Nos. 1 and 2 herein by the judgment and order dated 06.01.2009. 3. Being aggrieved, the appellant had preferred Title Appeal No. 7/2009 in the Court of learned Civil Judge (Senior Division), Barpeta. The said Title Appeal was dismissed by the learned Civil Judge (Senior Division), Barpeta by the judgment and decree dated 30.09.2010 and 13.10.2010 respectively. Being aggrieved, the appellant has instituted the present Second Appeal before this Court. 4. On perusal of the materials available on record it appears that by the order dated 14.06.2006 liberty to file a fresh suit was granted only to the plaintiff No. 2 therein i.e. Hiralal Oja. Therefore, the suit filed by the plaintiff No. 1 subsequently in respect of the same subject matter, prima facie, appears to be barred under Order XXIII Rule 1(1)(4)(b) CPC. Therefore, the suit filed by the plaintiff No. 1 subsequently in respect of the same subject matter, prima facie, appears to be barred under Order XXIII Rule 1(1)(4)(b) CPC. The aforesaid issue had been raised by the appellant before the First Appellate Court which is also reflected in the judgment under appeal but from a perusal of the judgment of the First Appellate Court it appears that the said aspect of the matter has not at all been gone into by the Court below. Mr. Medhi, learned counsel for the respondent No. 1, submits that since Hiralal Oja who was the plaintiff No. 2 in the original suit had subsequently become the plaintiff No. 2 in the subsequent suit as well and having regard to the fact that liberty was visibly granted to Hiralal Oja to come up with the subsequent suit, therefore, the suit itself cannot be held to be barred under the provisions of Order XXIII. 5. The question as to whether the suit filed by the plaintiff No. 1 was barred under Order XXIII Rule 1(1)(4)(b) or not was definitely a pertinent issue raised by the appellant and therefore it ought to have been decided by the learned Court below. The answer to the aforesaid issue would have a decisive bearing in the outcome of the suit itself and therefore goes to the root of the matter. Without deciding the aforesaid aspect of the matter the learned Appellate Court committed manifest illegality in deciding the suit filed by the plaintiffs on merit. In that view of the matter, the impugned judgment and decree under appeal is not sustainable in the eye of law and as such the same is hereby set aside. However, having regard to the discussions made herein above, the matter is now remanded back to the First Appellate Court with a direction to the Court below to frame an issue on the point as to whether the suit was maintainable in view of the bar imposed by Order XXIII Rule 1(1)(4)(b) of the Code of Civil Procedure. 6. The First Appellate Court will now decide the appeal afresh by answering the question of law as raised herein before. An endeavour shall be made to complete the exercise as indicated herein before as expeditiously as possible, preferably within a period of six months from the date of receipt of records of the case. 6. The First Appellate Court will now decide the appeal afresh by answering the question of law as raised herein before. An endeavour shall be made to complete the exercise as indicated herein before as expeditiously as possible, preferably within a period of six months from the date of receipt of records of the case. The Second Appeal stands allowed to the extent indicated above, Registry may send back the LCR forthwith. Having regard to the facts and circumstances of the case, there would be no order as to cost. Parties to appear before the First Appellate Court on 02.03.2015.