Nurmohmed Usmanbhai Mansuri v. State Of Gujarat

ORAL JUDGMENT

Appellants-original plaintiffs have filed the present Appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 8.7.1986 passed by the learned Extra Assistant Judge, Bharuch in Regular Civil Appeal No. 108 of 1985 whereby the learned Appellate Judge dismissed the appeal and confirmed the judgment and decree dated 23.7.1985 passed by the Civil Judge [Senior Division], Bharuch in Regular Civil Suit No. 129 of 1983.

2. Brief facts leading to the present Appeal are that the appellants-original plaintiffs filed Regular Civil Suit No. 129 of 1983 in the court of Civil Judge [Senior Division], Bharuch for permanent injunction. In the said suit, respondent no. 3 filed an application at Exh. 39 stating therein, that since the appellants had filed a suit earlier and the same was withdrawn by them, the present suit on the same subject matter is not maintainable and it deserves to be dismissed. Learned Civil Judge [Senior Division], Bharuch allowed the application of respondent no. 3 and held that the suit is not maintainable and vide order passed below application Exh.39, the suit came to be dismissed. Being aggrieved and dissatisfied with the said judgment and decree, the appellants preferred Regular Civil Appeal No. 108 of 1985 which also came to be dismissed by the learned Extra Assistant Judge, Bharuch by judgment and decree dated 8.7.1986 Being aggrieved by the said judgment and decree passed by the learned Extra Assistant Judge, Bharuch, the appellants have preferred the present Appeal.

3. The Appeal is admitted by the co-ordinate Bench of this Court on 18.12.1987 and the following substantial questions of law are framed for determination of the Court:-

“[1] Whether in the facts and circumstances of the case, the Courts below were right in holding that Regular civil Suit No. 129 of 1983 was not maintainable in view of the fact that Regular Civil Suit No. 479 of 1982 was pending on the date of the institution of the earlier suit?

[2] Whether in the facts and circumstances of the case, the Courts below have erred in not properly interpreting the provisions of Order 23 Rule 4[b] of the Code, particularly in view of the fact that the learned trial Judge had granted permission to withdraw the earlier suit with liberty to file a fresh suit on the same subject matter?”

4. Mr. D.D Vyas, learned advocate appearing for the appellants submitted that the courts below ought to have considered the explanation given by the appellants and their advocate about non-availability of the court. It is submitted that assuming that the second suit was premature or defective in absence of permission, the Trial Court ought to have weighed the equities and passed such orders to meet the ends of justice. It is submitted that party should not be ousted only on technical grounds. When the defect was cured later on, the suit ought to have been construed to have been instituted on the date of the removal of such defect. Learned advocate submitted that in view of the reasoning assigned by the courts below, the judgments and decree passed by the courts below deserve to be quashed and set aside.

5. Ms. VS Pathak, learned advocate representing respondent nos. 1 and 2 submitted that the judgments and decree passed by the courts below cannot be interfered with while exercising powers under Section 100 of the CPC as no illegality is committed by the courts below in dismissing the suit of the appellants-plaintiffs. Learned AGP placed reliance on the reasoning given by the courts below and submitted that the suit which was filed on earlier occasion was withdrawn on 22.3.1983 and the present suit was filed prior to withdrawal of the previous suit on 21.3.83 In view of the aforesaid facts and circumstances of the case, the present suit filed prior to withdrawal of the previous suit cannot be said to be fresh suit and so, the present suit is not maintainable. It is further submitted that as there is no merit in the Second Appeal, the Appeal requires to be dismissed.

6. Though respondent no. 3 is served, none appears for him.

7. I have heard Mr. DD Vyas, learned advocate for the appellants and Ms. VS Pathak, learned AGP representing respondent nos. 1 and 2 at length and in great detail. Appellants-original plaintiffs preferred Regular Civil Suit No. 129 of 1983 in the court of Civil Judge [Senior Division], Bharuch for permanent injunction wherein, respondent no. 3 had filed an application vide Exh.39 contending, inter alia, that since the earlier suit which was filed by the appellants was withdrawn, the present suit cannot be entertained on the same subject matter and it requires to be dismissed. The learned Trial Judge, after hearing the arguments at length, allowed the application of respondent no. 3 and held that the suit is not maintainable. Thereafter, the present appellants approached the Appellate Court who also dismissed the appeal and confirmed the judgment and decree passed by the learned Trial Court. On perusal of the reasoning given by the courts below and considering the provisions of Order 23 Rule 4[b] of the CPC, it becomes clear that the present suit was filed on 21.3.1983, while the first suit was withdrawn on 22.3.1983 with permission to file fresh suit. The Appellate Court considered the aforesaid aspect and held that the subject matter of the present suit and previous suit being Regular Civil Suit No. 479 of 1982 is quite similar and looking to the pleadings of the present suit as well as previous suit, it becomes clear that the second suit is filed on the same subject matter and, therefore, it is not legally maintainable. Thus, considering the aforesaid aspect and the provisions of Order 23 Rule 4[b] of CPC, the Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Considering the reasoning given by the courts below in the judgments rendered by them, previous suit being Regular Civil Suit No. 479 of 1982 was withdrawn on 22.3.1983 with permission to file fresh suit, while the present suit was filed on 21.3.1983 As provided under Order 23 Rule 4[b], plaintiff is entitled to file fresh suit after obtaining permission and withdrawing the first suit. But as held by the courts below, the appellants filed the present suit on 21.3.1983 and thereafter, on the next day, i.e on 22.3.1983, they withdrew the earlier suit and as the subject matter of previous suit being Regular Civil Suit No. 479 of 1982 and the present suit is similar in nature, the present suit was not entertained by the learned Trial Judge. The appellants ought to have withdrawn the first suit with condition to file fresh suit and thereafter, they ought to have preferred the present suit. However, the appellants had withdrawn the previous suit on 22.3.1983 and filed the present suit on 21.3.1983 prior to withdrawal of the previous suit. Therefore, it cannot be said that the appellants had filed the present suit with permission to file fresh suit on the basis of new notice. In view of the aforesaid facts and circumstances and considering the provisions of Order 23 Rule 4[b] of the CPC, I answer first substantial question of law in the affirmative and second substantial question of law in the negative and therefore, the appeal deserves to be dismissed.

8. For the foregoing reasons, there is no merit in the Appeal and the same is hereby dismissed with no order as to costs. Interim relief stands vacated.