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2015 DIGILAW 895 (KAR)

P. Rajeshwari v. Srinivasa

2015-08-10

B.S.PATIL

body2015
ORDER : B.S. Patil, J. - This revision petition is filed by defendant 5 in O.S. No. 144 of 2012. She is challenging the order passed by the Court below dismissing I.A. No. 3 filed by her under Order 23, Rule 1 of Civil Procedure Code, 1908 read with Order 2, Rule 2 and Section 12 of CPC praying for dismissal of the suit as not maintainable. 2. Briefly stated, facts leading to this revision petition are that respondents 1 to 5 herein have filed a suit O.S. No. 144 of 2012 seeking declaration that they were the absolute owners in lawful possession and enjoyment of the suit schedule property and for permanent injunction against the defendants from interfering with their peaceful possession and enjoyment. They have also sought for a declaration that the sale deeds dated 24-7-1996 and 1-8-1998 were obtained by defendants 2 and 5 respectively by playing fraud and therefore, they were not binding on the plaintiffs. 3. Plaintiffs had earlier filed a suit in O.S. No. 237 of 2007 seeking partition and separate possession of their share in the family properties. The said suit was withdrawn stating that it was not properly framed. However, no liberty' had been reserved for filing a fresh suit. Therefore, defendant 5 filed the present application seeking dismissal of the second suit O.S. No. 144 of 2012 contending that withdrawal of the suit without permission to file fresh suit precluded the plaintiffs from filing fresh suit in respect of the subject-matter or part of the claim and hence, the suit was not maintainable as it was barred under Order 23, Rule 1 of CPC. 4. This application was contested, contending inter alia that the provision invoked by the defendants was inapplicable to the case on hand and a fresh suit was not precluded having regard to the nature of the relief sought and the cause of action pleaded in the two suits. 5. The Court below has dismissed the application holding that perusal of the plaint disclosed that cause of action for the present suit arose on 10-1-2012 when defendant 1 and his supporters caused interference, whereas in respect of O.S. No. 237 of 2007 cause of action was shown to have arisen on 26-2-2007 when the plaintiffs got information regarding alienation of the property. The Trial Court has also found that relief sought by the plaintiffs in both the suits were different and therefore, there was no bar for filing another suit on the basis of different cause of action. 6. Sri Ravishankar, learned Counsel appearing for the petitioner submits that expression used in Rules 1, 3 and 4 of Order 23 is 'subject-matter of the suit' and the said expression cannot be equated to cause of action. Therefore, as long as the subject-matter involved in the earlier suit and the suit filed afresh are the same, bar under Order 23, Rule 4 would operate and the plaintiff would be precluded from instituting a fresh suit in respect of the same subject-matter or such part of the claim, in the absence of an order reserving liberty to file fresh suit. 7. It is his contention that Parliament has advisedly and consciously used the expression 'such subject-matter or such part of the claim' in Order 23 of CPC and has not used the expression 'same cause of action' as could be found in other provisions such as Order 9, Rule 9 and Order 22, Rule 9 of CPC. He also points out that even as per Order 2, Rules 2 and 3, every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and where he omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted. He urges that decision of the Calcutta High Court in the case of Albert Judah Judah v. Rampada Gupta and Another, AIR 1959 Cal. 715 (Vol. 46, C. 200)(1) does not lay down correct law. He has placed reliance on the judgment in the case of K.S. Bhoopathy and Others v. Kokila and Others, AIR 2000 SC 2132 : (2000)5 SCC 458 to contend that even while granting leave to file a fresh suit by withdrawing the earlier suit, the discretion conferred on the Court has to be exercised with caution and circumspection and in accordance with sub-rule (3) of Rule 1 Order 23 after being satisfied that the suit must fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of the claim. He urges that it is the duty of the Court to feel satisfied that proper grounds exist for granting permission for withdrawal of the suit with leave to file fresh suit. 8. To the same effect, he has placed reliance on the judgment in the case of Bakhtawar Singh and Another v. Sada Kaur and Another, AIR 1996 SC 3488 : (1996)11 SCC 167 . He emphasises that principle underlying Rule 1 Order 23 of CPC is that when the plaintiff once institutes a suit in a Court and thereby avails remedy given to him under law, he cannot be permitted to institute fresh suit in respect of same subject-matter again after abandoning the earlier suit or by withdrawing it without permission of the Court and that such provision is made in order to prevent a litigant from abusing the process of the Court in instituting suits again and again on the same cause of action without any good reason. He thus urges that the Code insists that he should obtain permission of the Court to file a fresh suit by establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 Order 23 of CPC. In this regard, he draws sustenance from the decision of the Apex Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Madhya Pradesh, Gwalior and Others, AIR 1987 SC 88 : 1987 SCC (Cri.) 19 : (1987) 1 SCC 5 . 9. Sri S.V. Shastri, learned Counsel appearing for the respondents strongly supports the order under challenge. He places reliance on the judgments in the case of S. Nazeer Ahmed v. State Bank of Mysore and Others, AIR 2007 SC 989 : (2007)11 SCC 75 : 2007(135) Comp. Cas. 664 (SC) and in the case of Smt. Nirmala v. Hari Singh, AIR 2001 HP 1 . 10. Upon hearing the learned Counsel for both parties, it is clear that the controversy raised revolves round the interpretation and understanding of the expression 'subject-matter of the suit' or 'part of the claim' as used in sub-rule (3) and 'such subject-matter' or 'such part of the claim' as used in sub-rule (4) of Rule 1 Order 23of CPC. It is necessary to refer to the provisions contained in Order 23, Rule 1 of CPC. It reads as under: "1. Withdrawal of suit or abandonment of part of claim. It is necessary to refer to the provisions contained in Order 23, Rule 1 of CPC. It reads as under: "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 32 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 sub-rule (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 defect; 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 form 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. (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. It is thus clear that while the plaintiff may, after the institution of the suit, abandon it or part of the claim in respect of all or any of the defendants, if he wants to institute a fresh suit in respect of the 'subject-matter of such suit' or 'such part of the claim', he is required to obtain permission of the Court. Such permission would be granted by the Court, if the Court is satisfied that there was some formal defect in the suit on account of which the suit must fail or that sufficient grounds existed for allowing the plaintiff to institute a fresh suit for the 'subject-matter of suit' or 'part of the claim'. 12. In the instant case, the first suit O.S. No. 237 of 2007 was filed by the plaintiffs seeking partition and separate possession of their share. It was instituted against the same defendants. The said suit was withdrawn without seeking any liberty to file a fresh suit. The second suit O.S. No. 144 of 2012 has been filed not for partition, but for the relief of declaration that plaintiffs were the absolute owners of the properties. The suit schedule properties in both suits are the same. It is, therefore, urged by the Counsel for the petitioners that as the 'subject-matter of the suit' in both the cases are same and as the earlier suit has been dismissed as withdrawn without reserving liberty, the second suit was barred. 13. The term 'subject-matter of the suit or 'part of the claim' used in sub-rule (3) and reiterated in sub-rule (4) of Rule 1 Order 23 of CPC, cannot be understood as merely referring to the movable and immovable properties that are the subject-matter of the litigation. 13. The term 'subject-matter of the suit or 'part of the claim' used in sub-rule (3) and reiterated in sub-rule (4) of Rule 1 Order 23 of CPC, cannot be understood as merely referring to the movable and immovable properties that are the subject-matter of the litigation. If such restricted interpretation is laid, then it would tantamount to saying that once a suit is filed in respect of a particular property against any person and if the said suit is abandoned or withdrawn without liberty, then in respect of the said property, no second suit or other suit can be filed under whatever circumstance for whatever relief against the defendants in the said suit or persons claiming under them. The underlying intention and purpose of the Legislature in enacting this provision does not seem to prohibit once and for all institution of any other suit in respect of the same property. The expression 'same subject-matter' or 'same claim' or 'part of the claim', is not used in the provision as a synonym to the expression 'same property'. 14. For the purpose of the present case, if we examine the facts, it becomes dear that first suit was instituted in respect of the same properties, but for a distinct and separate relief seeking partition which involved joint claim over all the properties by the plaintiffs along with the defendants. Plaintiffs sought for division of their shares. Insofar as the second suit is concerned, plaintiffs do not claim share in the property along with defendants, they assert their exclusive right over the properties. Therefore, the subject-matter of the suit, if understood, in the sense of the claim made, the nature of the relief sought and the basis on which the said relief or right has been traced, it would be clear that the subject-matter of the suit and claim made in the two suits are distinct. But, if the subject-matter of the suit is construed in a narrow sense to refer to the property involved in both suits, then it would mean that both suits relate to same subject-matter. 15. Intention of the Legislature, as can be seen from the provisions contained in sub-rules (1) to (3) of Rule 1 Order 23 is to prohibit a plaintiff-litigant to institute a suit, then abandon it at his choice and again come up with another suit seeking similar claim or relief. 15. Intention of the Legislature, as can be seen from the provisions contained in sub-rules (1) to (3) of Rule 1 Order 23 is to prohibit a plaintiff-litigant to institute a suit, then abandon it at his choice and again come up with another suit seeking similar claim or relief. It is against public policy to permit such institution of suits. But, to say that once a suit is instituted in respect of a particular property, then there can be no second suit in respect of the said property, unless plaintiff had been reserved liberty by the Court while withdrawing the earlier suit, would be to travel beyond the intent and purport behind this provision. It may be that at the time when the first suit was abandoned by the plaintiffs, they might not be aware of the right that might crop up in their favour subsequently for instituting a second suit seeking entirely different relief based on a different cause of action, though in respect of the same property and against the same individual. To preclude such a second suit by giving a narrow interpretation to the term 'subject-matter of the suit' used in sub-rules (3) and (4) of Rule 1 Order 23 of CPC would amount to depriving a bona fide litigant who may get a new and altogether different claim or cause of action in respect of the same property against the same parties from instituting the suit. 16. The expression 'subject-matter of the suit', if understood in the background of what is stated above, would only mean the subject-matter which can be ascertained from the entire plaint filed. The plaint would state the relief claimed, the cause of action and the basis of his right that entitles the plaintiff for such relief. Therefore, if the relief claimed, and the cause of action in support of the relief claimed as pleaded in the second suit are different from the one pleaded in the suit instituted previously, but withdrawn without liberty, then it has to be held that for the purpose of sub-rules (3) and (4) of Rule 1 Order 23 of CPC, the two suits are not in respect of same subject-matter. Thus, what makes the subject-matter different, may be the new facts that might have intervened or addition of new facts to the existing facts that make the plaintiffs to file the latter suit. Thus, what makes the subject-matter different, may be the new facts that might have intervened or addition of new facts to the existing facts that make the plaintiffs to file the latter suit. If there are no change in the facts and if the facts in existence are similar or same even while instituting the second suit and therefore, if there was no different cause of action, then merely because the relief is couched in a language different from the one that was sought in the previous suit, the second suit will not be saved. If, however, new intervening facts have come into existence or additional facts have intervened, based on which a new cause of action has accrued, then even if the earlier suit in respect of the same property had been dismissed as withdrawn without liberty, there can be no bar for instituting the second suit in respect of the same property or subject-matter. 17. The judgment of the Apex Court in Kailash Nath Agarwal and Others v. Pradeshiya Industrial and Investment Corporation of Uttar Pradesh and Another, AIR 2003 SC 1886 : (2003) 4 SCC 305 : 2003 (114) Comp. Cas. 4 (SC) relates to principles of interpretation of statutes. It is laid down that different words used in one statute have to be assigned proper meaning by construing the intention of the Legislature and by prima facie proceeding on the premise that different words used carry different meaning. Various provisions in the Code such as Order 9, Rule 9 , Order 22, Rule 9 , Order 2, Rules 2 and 3 and even Order 7, Rules 1 and 3 of CPC refer to the expression 'subject-matter of the suit' or 'cause of action' or 'part of the claim'. These expressions may not be equated with each other to assign similar or same meaning. 18. It is true the expression 'subject-matter of the suit' and 'cause of action' are used in different provisions of the Court. These expressions may not be equated with each other to assign similar or same meaning. 18. It is true the expression 'subject-matter of the suit' and 'cause of action' are used in different provisions of the Court. For example, under Order 7, Rules 1 and 2, the expression 'subject-matter of the suit' is used in sub-rule (1) of Rule 1 Order 7 in the context of statement to be made in the plaint regarding the value of the subject-matter of the suit for the purpose of jurisdiction and Court fees and in Rule 3 as to how the plaint shall describe the property to enable clear identification of the same by furnishing the boundaries, etc., where the subject-matter of the suit is immovable property. 19. In the present provision under sub-rules (3) and (4) of Rule 1 Order 23 of CPC, if the intention of the Legislature was to refer to the property involved in the suit, it would have certainly made it clear that no second suit would lie in respect of the same property, for which earlier suit had been instituted and withdrawn without liberty. Therefore, even by juxtaposing the provisions under Order 7, Rules 1 and 3 and Order 23, sub-rules (3) and (4) of Rule 1 or other similar provisions would not help in attempting to confine the intention behind the use of the expression 'subject-matter of the suit' or 'part of the claim' to the property involved in the suit. Similarly, the expression used under Order 9, Rule 9 and Order 22, Rule 9 referring to the expression 'cause of action' will also not help in understanding the true purport and intent behind the provision contained in sub-rules (3) and (4) of Rule 1 Order 23 of CPC. 20. The other judgments on which the learned Counsel, Sri Ravishankar has placed reliance, no doubt will throw light on the object and purpose behind precluding the plaintiff from instituting a fresh suit having abandoned the earlier suit without seeking permission of the Court. There can be no second opinion about the salutary object underlying such a provision, as otherwise it will enable a litigant to vex his opponent with obligations to defend himself for the same cause or for the same claim again and again which is against public policy. There can be no second opinion about the salutary object underlying such a provision, as otherwise it will enable a litigant to vex his opponent with obligations to defend himself for the same cause or for the same claim again and again which is against public policy. The Courts which are meant for resolving and adjudicating disputes between parties, cannot be misused by engaging them for resolution of such claims by the plaintiffs who intend to harass the defendants. 21. But, the situation as presented in the present case is totally different. At the risk of repetition it has to be stated that the right, now claimed by the plaintiffs, is based on the absolute right of the plaintiffs over the property and not the relief of partition conceding the joint rights of all other members of the family. 22. What are the facts that have intervened and how the plaintiffs seek the instant relief, can be examined at the stage of trial by framing necessary issues. Indeed defendants have taken a defence by referring to the provision contained under Order 2, Rule 2 of CPC, urging legal bar to maintain the second suit. Therefore, without prejudice to the right of the defendants to establish the defence taken in this regard during the course of trial, this petition is dismissed confirming the order passed by the Court below. 23. It is made clear that the order now passed is only with regard to the interpretation of the expression 'subject-matter of the suit' or 'part of the claim' as used in sub-rules (3) and (4) of Rule 1 Order 23 of CPC and all other contentions referring to the merits are kept open.