JUDGMENT

1. Both these civil revision applications challenging the same impugned order dtd. 16/8/2019 in Special Civil Suit No.89/2006 filed on 1/9/2006, are taken up for final disposal with the consent of the parties, at the stage of admission itself.

2. Heard Mr Parag Rao along with Mr A. Parrikar, learned counsel for the applicants in both the matters and learned Senior Counsel Shri Sudin Usgaonkar along with Shri Ashwin Ramani and Shri Shukr Usgaonkar, learned counsel for the respondents.

3. Applicants no.1 and 2 in Civil Revision Application No.46/2019 are original defendants no.2 and 4. Applicant since deceased through his LRs in Civil Revision Application No.47 of 2019 is the original defendant no.3. These defendants filed an application under Order XXIII Rule 1(4) along with Sec. 151 of CPC in Special Civil Suit No.89/2006 claiming therein that the said suit be dismissed as the plaintiff by abandoning their foundational claim in Special Civil Suit No.74/2007 are not entitled to pursue the present suit on almost identical reliefs and between the same parties.

4. The learned trial Court rejected both the applications by the impugned order on the ground that Order XXIII Rule 1(4) of CPC is not applicable as the subsequent suit has been withdrawn. Similarly, the learned trial Court did not exercise Sec. 151 of CPC as tried to be claimed by the applicants for purpose of dismissal of the said suit claiming to be an abuse of process of law.

5. Mr Rao, learned counsel appearing for the applicants vehemently argued that the history of the present litigation between the family members clearly goes to show that two suits were filed on a common foundational claim that the consent decree dtd. 26/2/1976 grants them title over 246 properties including the suit properties. When the present applicants/defendants by filing written statement in the first suit, challenged the consent decree of 1976 as null and void and when such an issue was framed, the said plaintiffs clandestinely withdrew the first suit with an intention that such issue about the nullity of the consent decree not be adjudicated and decided. Mr Rao then would submit that no such issue was framed in the second suit, however, the foundational claim about the second suit is also similar to the first suit. He then submitted that the original plaintiffs even tried to stay the subsequent suit by filing an application under Sec. 10 of CPC thereby claiming that the issues in the subsequent suit are the same as that of the first suit. However, such attempts were not fruitful and finally the first suit was withdrawn wherein a specific issue was framed by the trial Court with regard to nullity of the consent decree of 1976.

6. Mr Rao would then submit that the conduct of the plaintiffs clearly goes to show that the proceedings in the second suit are only with intention to harass the present applicant and other defendants. He submitted that the scope of Order XXIII should not be restricted only with respect to the subsequent suit and the intention of the legislature in it must be applied to the previous suit also, when it has been established that the previous suit itself was withdrawn only with an intention not to adjudicate the specific issue when such issue was not framed in the subsequent suit.

7. Mr Rao would then submit that there are contradictory pleas, mutually destructive averments made in both the suits and the order passed by the Court in connection with Portuguese Civil Miscellaneous Application no. 158/2006 filed by the mother as well as of the plaintiffs claiming therein that the marriage between Mrs Sitadevi and her husband Raghunathrau was on the basis of ante nuptial agreement. He would then submit that such agreement clearly goes to show that the family was governed by the Portuguese Civil Code and not by the Code of Gentile Hindu Usages and Customs of Goa, 1880. He would submit that the decision passed by the Court in Portuguese Civil Miscellaneous Application no. 158/