1997 Supreme(MP) 1092

IN THE HIGH COURT OF MADHYA PRADESH
S.B. Sakrikar, J.
Aansingh – Applicant
Versus
Ranjlibai – Respondent
Civil Revision No. 1043 of 1996 (I)
Decided On : 04-07-1997

Headnote:(1)Civil Procedure Code, 1908 – O. 23 R. 1 and O. 23 R. 1 (4)(b) – previous suit withdrawn unconditionally – subsequent suit against same party, based on same cause of action for same relief is barred under O. 23 R. 1 (4)(b).

       (2)Civil Procedure Code, 1908 – O. 23 R. 1 (4)(b) and O. 23 R. 1 – previous suit withdrawn unconditionally – subsequent suit against same party, based on same cause of action for same relief's barred under O. 23 R. 1 (4)(b).

       (3) Res Judicata – previous suit withdrawn unconditionally – subsequent suit against same party, based on same cause of action for same relief is barred.

        Short Note

       1. The defendant/applicant has directed this revision petition against the order dated 8.10.1996 passed by Civil Judge, Class – II, Khargone in CS No. 58 – A of 1996 thereby dismissing the applicant/defendant's application under Order XXIII Rule 1(4) of the Code of Civil Procedure (for short, the Code).

       2. Briefly stated the facts of the case are that the plaintiff/non – applicant no. 1 and others filed a suit for declaration, possession and injunction against the applicant alongwith non – applicant no. 2 with regard to the agricultural land in village Moolvanya Tehsil Bhagwanpura District Khargone. The said CS was registered as CS No. 34 – A/95. The suit was resisted by the applicant and non – applicant no. 2, Premsingh. During the pendency of the aforesaid suit, non – applicant no. 1 Runjlibai, plaintiff of the said suit submitted the application on 15th December 1996 under Order XXIII Rule 1 of the Code of withdrawal of the suit. On the application, the aforesaid suit was accordingly dismissed.

       3. Said Runjlibai again filed CS No. 58 – A/96 on 7th June, 1996 against the applicant and non – applicant no. 1, in respect of the same land claiming the same reliefs of declaration, possession and injunction on the same cause of action. The applicant and respondent no. 2/ defendant filed the application under Order XXIII Rule (1)(4) of the Code raising an objection that as the previous suit was dismissed under Order XXIII Rule 1 of the Code without seeking permission to file a fresh suit, the applicant's suit is not maintainable on the same cause of action. Learned trial Judge by the impugned order dismissed the aforesaid application filed on behalf of the applicant and respondent no. 2. Aggrieved, the applicant has filed this revision petition.

       4. I have heard Shri T.N. Singh learned counsel for the applicant and Shri Sharma learned counsel for the non – applicants, no. 1 and 2. None appeared for other non – applicants.

       5. The only contention of the learned counsel for the applicant is that the previous suit numbered as 34 – A/95 was not dismissed unconditionally on the application of non – applicant no. 1 Runjlibai filed under Order XXIII Rule 1 of the Code. The present subsequent suit filed on behalf of same plaintiff – Runjlibai against the same defendants with regard to the same property and on same cause of action is prima – facie not maintainable in view of the provisions of Order XXIII Rule 1 (4)(b) of the Code. The Court has committed an illegality in rejecting the objection raised on behalf of the applicant by filing the application under Order XXIII Rule 1 (4) (b) of the Code.

       6. As against this, learned counsel for the non – applicant no. 1 simply supported the impugned order.

       7. I have considered the rival submissions of the counsel for the parties and perused the record as also the impugned order.

       8. On perusal of the record and copy of the plaint of CS No. 34 – A/95 and copy of CS No. 58 – A/96, I am satisfied that parties of the aforesaid suits are same and the property involved also the same the aforesaid suits are based on same cause of action. On perusal of the copy of the order dated 15.12.1995 passed in CS No. 34 – A/95 it also emerged that the previous suit filed on behalf of the non – applicant no. 1 Runjlibai was dismissed unconditionally on the application of the plaintiff/non – applicant no. 1 filed under Order XXIII Rule 1(4) of the Code.

       9. As the subsequent present suit numbered as CS No. 58A/96 is filed by non – applicant no. 1 Runjlibai against the present applicant and non – applicant no. 2 with regard to the same subject matter based on similar cause of action on which the previous one was instituted, it is not maintainable under the law in view of the Provisions of Order XXIII Rule 1 (4)(b) of the Code.

       10. In view of the facts and circumstances of the case at hand and the law applicable, learned Court below has committed illegality in rejecting the objection raised on behalf of the applicant by filing the application under Order XXIII Rule 1, 4 of the Code and as such the impugned order or the trial Court deserves to be demolished.

       11. Consequently, this provision is allowed. The impugned order of the trial Court being illegal and contrary to the provisions of law is hereby quashed and the CS No. 58 – A/96 filed on behalf of plaintiff/non – applicant no. 1 Runjlibai stands dismissed as not maintainable under Order XXIII Rule 1, 4(b) of the Code. No order as to costs.