1. Land acquisition dispute — Previous suit for permanent injunction withdrawn without liberty to file fresh suit — Subsequent suit for declaration and injunction filed for same subject matter. (Para 4 , 5 )
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2017 Supreme(SC) 1522
SUPREME COURT OF INDIA
ARUN MISHRA, NAVIN SINHA, JJ.
University of Agricultural Sciences - Petitioner
Versus
Smt. Saroj Gupta - Respondent
Civil Appeal No(s). 10728 of 2017 (Arising out of SLP(C) No. 36751 of 2014)
Decided on : 21-08-2017
Advocate Appeared:
For the Petitioner:Mr. Krishan Venugopal, Sr. Advocate, Mr. E.C. Vidya Sagar, AOR and Mr. Sunashchandra Sagar, Advocate.
For the Respondent:Mr. G.L. Vishwanath, Mr. Naveen Chawla, Advocates and Mr. T. Mahipal, AOR.
For the Petitioner:Mr. Krishan Venugopal, Sr. Advocate, Mr. E.C. Vidya Sagar, AOR and Mr. Sunashchandra Sagar, Advocate.
For the Respondent:Mr. G.L. Vishwanath, Mr. Naveen Chawla, Advocates and Mr. T. Mahipal, AOR.
Under Order 23 Rule 1(4) of the Code of Civil Procedure, a plaintiff who withdraws a suit or part of a claim without obtaining the court's permission under Rule 1(3) to file a fresh suit is precluded from instituting any subsequent suit regarding the same subject matter.
Headnote:
Land Acquisition - University of Agricultural Sciences - Land Acquisition Act 1894 - Section 4 - Order 23 Rule 1(4) of the Code of Civil Procedure, 1973
Fact of the Case:
The dispute arose from land acquisition proceedings under the Land Acquisition Act 1894. The plaintiff filed a suit for permanent injunction, claiming ownership of the land, which had been acquired for the University of Agricultural Sciences. After the dismissal of the suit and appeal, a fresh suit was filed for declaration and permanent injunction.
Finding of the Court:
The court found that the fresh suit was barred by Order 23 Rule 1(4) of the Code of Civil Procedure, 1973, as the previous suit and appeal had been withdrawn without reserving any liberty to institute a fresh suit.
Issues: The main issue was whether the fresh suit for declaration and permanent injunction was maintainable, considering the provisions of Order 23 Rule 1(4) of the Code of Civil Procedure, 1973.
Ratio Decidendi: The court held that the plaintiff was precluded from instituting a fresh suit under Order 23 Rule 1(4) as the previous suit and appeal had been withdrawn without reserving any liberty to institute a fresh suit.
Final Decision: The court set aside the judgment and decree passed by the trial court and affirmed by the High Court, and ordered the dismissal of the suit filed by the plaintiff. The appeal was allowed, with parties bearing their own costs.
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Table of Contents
2. Whether the subsequent suit is barred by Order 23 Rule 1(4) and Order 2 Rule 2 of the Code of Civil Procedure and the law of limitation. (Para 6 , 7 )
3. The previous suit and appeal regarding the same land were withdrawn without reserving liberty to institute a fresh suit, attracting the bar under Order 23 Rule 1(4). (Para 8 , 10 )
4. Withdrawal of a suit or appeal without court permission to file a fresh suit under Order 23 Rule 1(3) precludes the plaintiff from instituting a fresh suit. (Para 8 , 10 )
5. Appeal allowed — Judgment and decree of the trial court and High Court set aside — Suit dismissed. (Para 11 )
6. Does withdrawing a suit without permission to file a fresh suit bar subsequent litigation on the same subject matter?
Yes. Under Order 23 Rule 1(4) of the Code of Civil Procedure, if a plaintiff withdraws a suit or part of a claim without the permission of the court as provided in Rule 1(3), they are precluded from instituting any fresh suit in respect of the same subject matter. (Para 8 , 10 )
7. Does adding a prayer for declaration of title to a subsequent suit bypass the bar under Order 23 Rule 1(4) if the previous suit was for injunction?
No. Adding a prayer for declaration of title does not change the complexion of the case if the previous suit was based on title, and the bar under Order 23 Rule 1(4) remains applicable. (Para 10 )
8. Under what conditions can a court grant permission to withdraw a suit with liberty to institute a fresh one?
Under Order 23 Rule 1(3), the court may grant permission if it is satisfied that the suit must fail by reason of some formal defect or if there are sufficient grounds for allowing a fresh suit for the subject-matter or part of a claim. (Para 9 )
ORDER :
ARUN MISHRA, J.
1. Leave granted.
2. Heard learned counsel for the parties.
3. The appeal has been preferred by the University of Agricultural Sciences aggrieved by the judgment and decree passed by the trial court which has been affirmed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 1218 of 2010 on 06.08.2013.
4. Facts lies in a very narrow compass. There had been land acquisition proceedings under the provisions of Land Acquisition Act 1894 (in short 'the Act'). The land had been acquired way back in the year 1977 and in 1980. The dispute arose with respect to the land acquired in the year 1980. Notification under Section 4 of the Act was issued on 9.3.1978 and it was finally acquired in the year 1980. The plaintiff had purchased some part of the land in the year 1982 by a sale deed. On the basis of the sale deed he filed a suit for relief of permanent injunction contending that he was the owner, his land had not been acquired and he continued to be owner of the land as such University of Agricultural Sciences be permanently restrained from interfering with the possession. The suit was ultimately decided on merits and trial court dismissed the suit holding that the suit land formed part of the land which had been acquired for the purpose of University. The dispute was with respect to the fact whether the land of the plaintiff was covered in acquisition. Be that as it may, it is an admitted fact that the suit land was the same in the previous suit for permanent injunction and issue had been framed in previous suit with respect to the fact whether the suit land had been acquired by the University. After dismissal of the suit the first appeal and the suit itself was withdrawn, however, without reserving any liberty to institute fresh suit. The suit and appeal arising out of aforesaid 1993 suit were withdrawn on 13.8.2001.
5. Thereafter fresh suit for declaration and permanent injunction was filed on 9.10.2002 out of which the present appeal arises. The same had been decreed by the trial court which had been affirmed by the High Court in the first appeal mainly on the ground that the defendant-University was unable to prove that the suit land had been acquired by it in the acquisition proceedings. However, certain documents had been filed later on indicating that the suit land had been acquired.
6. The main submission raised by Sh. Krishanan Venugopal, learned senior counsel appearing on behalf of the appellant-University is that the suit is barred by the provisions of Order 23 Rule 1(4) of the Code of Civil Procedure, 1973, and it is also barred by the provisions of Order 2 Rule 2 of the CPC. Suit was hopelessly barred by limitation and the documents which have been filed indicate that suit land in fact had been acquired.
7. It was urged by the learned counsel appearing on behalf of the respondent that the plea of Order 23 Rule 1(4) had not been raised in the written statement as such the defendant is barred from raising it. It was further submitted that since plaintiff was in possession the suit could not be said to be barred by limitation as the defendant has miserably failed to prove that the land in question had been acquired, as such, no case for interference in the appeal is made out.
8. After hearing learned counsel for the parties, we are of the considered opinion that appeal deserves to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The Regular First Appeal arising out of the same was withdrawn vide order dated 13.08.2001 and also the suit. Since the suit as well a
