2007 Supreme(Bom) 1629

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. DHARMADHIKARI, J.
Surjansingh s/o Mohansingh – Appellant.
Vs.
Jasbir Kaur wd/o Sardar Chanansingh & another - Respondent
SECOND APPEAL NO. 264 OF 2002
Decided On. NOVEMBER 27, 2007.

Headnote:Civil Procedure Code, 1908 - Order XXIII, Rule 1 (4)-Withdrawal of first suit-Second suit on same subject-matter Maintainability of-Appellant filed first suit to enable himself to exercise his power as a partner-Second suit filed by him regarding dissolution of partnership and rendition of account-Cause of action of second suit different than first suit though subject-matter of both suits same-Second suit not barred.-When the controversy involved before me is considered in this background, it is apparent that first suit filed by present appellant in 1978 was for enabling him to exercise his right and to exert powers of his status as partner of M/s. Ex-serviceman Kerosene Agency, Akola. He was doing so on the basis of agreement dated 8.8.1977 alleging that the agreement put an end to partnership between parties only upon payment of Rs. 10,000/- to him within a period of two months. As said payment was not done, be contended that partnership continued and therefore, he wanted to exercise his powers as a partner. It is an admitted position that he withdraw that suit unconditionally. Later on, he filed another suit at his native place Jagdari in district Yamuna Nagar is Haryana and later at Akola and claimed dissolution of partnership and also rendition of account. It is apparent that he claimed that he continued as partner and therefore he was entitled to rendition and also for dissolution. It is, therefore, clear that the subject-matter of both the suits was not identical because the reliefs claimed were entirely different though facts to support such relief may be same. He could not have claimed relief claimed by him in later suit in his first suit. Sub-rule (4) prevents plaintiff withdrawing from the suit without permission from filing a fresh suit for the same subject-matter as contemplated under sub-rule (3). The term "subject-matter" envisages essentially the plaintiffs cause of action for such a suit. In other words, a suit based on a different cause of action is not barred under this rule even though the suit may be in respect of the same subject. Thus when 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, and later reliefs could not have been asked for by him in first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter. Such second suit is not affected by mandate of Order II, Rule 1 or 2. I, therefore, find that in these circumstances, the trial Court as also the appellate Court have committed an error in holding that the suit filed by present appellant was barred in view of provisions of Order XXIII, Rule 1 sub-rule (4) of Civil Procedure Code. In the facts of present case, I find that the issue has rightly been examined as preliminary issue and no disputed question of fact fell for consideration in said scrutiny. However, this finding in favour of appellant itself cannot put an end to controversy involved in this Appeal in view of the finding already given about the competency of appellate to decide the order two aspects.

       Civil Procedure Code, 1908 - Order XLI, Rule 22-Crossobjection-Necessity of filing it-Respondent, if seeking any relief from appellate Court-Cross-objection necessary -Dismissal of suit-Adverse finding can still be challenged by respondent by raising objections orally even at final hearing of appeal.-In these circumstances, the first question to be answered is whether the appellate Court could have looked into the objections raised orally at the stage of final hearing of appeal before it that finding of trial Court on the issue of registration of partnership as also on the issue of limitation ought to have been in their favour. The language of Order XLI, Rule 22 of CPC itself is very clear and in its sub-clause (1) or even explanation, the Legislature has used the word ’may’. It is to be noticed that the confusion prevailing earlier was in relation to entitlement of a respondent to challenge the finding on a particular issue delivered by the lower Court against him though ultimately decision/decree of lower Court was in his favour. By adding said explanation, the controversy has been put beyond doubt by the legislature. Mulla in his commentary mentioned above has only clarified this position. The substantive part of sub-clause (1) of Rule 22 also clearly states that such respondent may at the stage of arguments state that finding against him in lower Court in respect of any issue ought to have been in his favour. It is to be seen that the legislature has used the semi-colon after this part and later part which reads : ’and may also take any cross-objection to the decree’ specifically contemplates the case in which a decree has been passed which such respondent could have assailed. It is apparent that in the facts of present case, there is no decree against the present respondents who were also respondents before the first appellate Court. A cross-objection to the decree would be necessary if the respondents want any particular relief in their favour from appellate Court. As the suit was already dismissed by the trial Court, the respondent before the appellate Court could not have prayed for any better relief and they were only challenging the adverse finding on remaining two issues against them by trial Court. The judgment of the Hon’ble Apex Court in the case of Choudhary Sahu v. State of Bihar (supra) is delivered in totally different set of facts. There, acting under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962, the Collector allowed certain units to various land holders who feeling aggrieved went in appeal before the Commissioner of the Division but the State of Bihar submitted to the order and did not go up in appeal nor did it file cross-objection. The Commissioner as well as High Court thereafter reversed the finding regarding allotment of units to various landholders (appellants before the Hon’ble Apex Court) though there was no appeal by the State of Bihar and said allotment had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross objection within the period of limitation. Thus, it is apparent that there the substantive rights were created in favour of land holders and the observations in relation to Order XLI, Rule 22 are made only in this background. Here, as already observed above, the present appellants could not have claimed any better relief than was granted to them by the trial Court and they were only seeking dismissal of suit against them on additional grounds.