Sunday, 26 July 2015

When plaintiff is precluded from filing fresh suit on same cause of action?

There is then endorsement of the same Judge on
the plaint Exhibit E that, the suit is disposed of as withdrawn.
Thus, it is clear that the earlier suit field was withdrawn
unconditionally. Now it would be appropriate to refer to Rule
1 of Order XXIII which deals with withdrawal of suit or
abandonment of part of claim. Sub-rules (3) and (4) of the
said provision read as under :

“(3) Where the Court is satisfied, ---
(a) that a suit must fail by reason of some
formal defect, or
(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh suit for
the subject matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw from such suit
or such part of the claim with liberty to institute
a fresh suit in respect of the subject matter of
such suit or such part of the claim.
(4) Where the plaintiff ---
(a) abandons any suit or part of claim under
sub-rule (1) or
(b) withdraws from a suit or part of a claim
without the permission referred to in sub-rule
(3),
he shall be liable for such costs as the Court
may award and shall be precluded from
instituting any fresh suit in respect of such
subject matter or such part of the claim.”
12. If the above provision is kept in view, it is apparent
that the plaintiff withdrew R.C.S. No.30/2011 unconditionally
and without taking permission of the Court under above subrule
(3). This being so, the plaintiff would be precluded from
instituting fresh suit in respect of the same “subject matter”,
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.150 OF 2014
Sayyed Noor s/o Sayyed Burhan,

VERSUS
Sayyed Minya s/o Sayyed Burhan,

CORAM: A.I.S. CHEEMA, J.
DATED: 10th March, 2015.
Citation;AIR 2015(NOC) 770 Bom

1. This revision has been filed by Sayyed Noor –
original defendant No.1 (hereinafter referred to as 'defendant'
of Regular Civil Suit No.404/2013, filed by respondent No.1 –
original plaintiff (hereinafrer referred to as plaintiff). The
plaint filed as R.C.S. No.404/2013 before the Civil Judge,
Junior Division, Gangapur is for possession of 40 R land from
Gat No.97, situated at Jogeshwari, Taluka Gangapur and for
removing the obstruction to way of 20 ft. x 600 ft. The suit
has been brought against applicant – defendant No.1 as well
as his children – respondents No.2 to 5 - original defendant

No.2 to 5.
2. The defendant filed application Exhibit 16 in the
suit, claiming that in view of provisions of Order II Rule 2 and
Order VII Rule 11 of the Code of Civil Procedure (C.P.C. for
short), the suit deserved to be dismissed as there was earlier
R.C.S. No.30/2011 filed by plaintiff for the same cause of
action and which suit had been withdrawn unconditionally and
so the suit was barred. The application of the defendant came
to be dismissed by Jt. Civil Judge, Junior Division, Gangapur
and hence, the present revision application.
3. I have heard learned counsel for the applicant –
defendant No.1 and learned counsel for respondent No.1 –
original plaintiff. Respondents Nos.2 to 5 are stated to be
formal respondents in the revision filed by the defendant
No.1. It has been argued by learned counsel for the
defendant that for the same property in dispute, earlier
plaintiff had filed R.C.S. No.54/2009 simplicitor claiming
injunction against the defendant on the plea that defendant
No.1 was encroaching land, with help of defendants Nos.2 to 4
arrayed therein. That suit came to be dismissed on

30.11.2010 after the suit was contested. Then the plaintiff
filed R.C.S. No.30/2011 claiming possession of the same 40 R
of land from the defendant. In the said suit, the present
defendant had rather filed application against the plaintiff and
injunction was granted in favour of the defendant.
Subsequently, however, the plaintiff withdrew that suit
unconditionally. Later on, the present suit R.C.S.
No.404/2013 has been filed claiming possession of the same
40 R land and further claiming removal of obstruction to the
alleged way. The learned counsel submitted that, as per
Order II Rule 2 of C.P.C., it was necessary for the plaintiff to
include the whole claim in the earlier suit R.C.S. No.30/2011
and could not split claim and having not done so, and having
withdrawn the suit unconditionally, the subsequent suit could
not be instituted for the same matter. The learned counsel
relied on the case of “State Bank of India Vs. Gracure
Pharmaceuticals Ltd.”, reported in AIR 2014 SC 731 to
claim that the defendant cannot be vexed twice for the same
cause of action by filing separate suits. According to the
learned counsel, the trial Court, by the impugned order,
rejected the application by referring to untenable reasoning
that earlier suit R.C.S. No.30/2011 was only against Sayyed

Noor (defendant No.1) and now his children have been added.
4. The learned counsel for the respondent No.1
submitted that, as claimed by the respondent No.1 in
affidavit-in-reply in para 15 shows, the nature of suit of R.C.S.
No.30/2011 and the nature of suit R.C.S. No.404/2013 were
totally different. It has been argued by the learned counsel
that the cause of action for both the suits are different and
that the impugned order passed by the trial Court below
Exhibit 16 was correct, legal and proper. According to the
counsel, earlier suit R.C.S. No.54/2009 was not in respect of
recovery of possession and it was simplicitor suit for
injunction while R.C.S. No.404/2013 is on different cause of
action and for different relief.
5. The questions before me are :-
(1) Whether the impugned order is illegal or is
suffering from material irregularity ?
(2) Is the R.C.S. No.404/2013 filed by plaintiff barred
in view of the unconditional withdrawal of R.C.S.
No.30/2011 ?
6. The counsel for defendant has relied on the case of

“State Bank of India” (supra), in which, while dealing with
Order II Rule 2 of C.P.C., the Hon'ble Supreme Court,
discussing facts of that matter, observed as under :
“15. When we go through the above quoted
paragraph it is clear that the facts on the basis of
which subsequent suit was filed, existed on the
date on which the earlier suit was filed. The earlier
suit was filed on 15.3.2003 and subsequent suit
was filed on 21.5.2003. No fresh cause of action
arose in between the first suit and the second suit.
The closure of account, as already indicated, was
intimated on 20.3.2002 due to the alleged fault of
the respondent in not regularizing their accounts
i.e. after non-receipt of payment of LC, the account
became irregular. When the first suit for recovery
of dues was filed i.e. on 15.3.2001 for alleged
relief, damages sought for in the subsequent suit
could have also been sought for. Order 2 Rule 2
provides that every suit shall include the whole of
the claim which the plaintiff is entitled to make in
respect of the same cause of action. Respondent
is not entitled to split the cause of action into parts
by filing separate suits. We find, as such, that
respondent has omitted certain reliefs which were
available to it at the time of filing of the first suit
and after having relinquished the same, it cannot
file a separate suit in view of the provisions of subrule
2 of Order 2 Rule 2, CPC. The object of Order
2 Rule 2 is to avoid multiplicity of proceedings and
not to vex the parties over and again in a litigative
process. The object enunciated in Order 2 Rule 2,
CPC is laudable and it has a larger public purpose
to achieve by not burdening the court with
repeated suits.”
7. Keeping the above in view, now if the present
matter is appreciated, there is copy of plaint available from

R.C.S. No.30/2011, which the plaintiff had filed before Civil
Judge, Junior Division, Gangapur (Exhibit E). Material
contents relevant for appreciation can be reproduced as
follows –
 In R.C.S. No.30/2011, the plaintiff claimed
that the suit related to 40 R land from Gat No.97 of
Jogeshwari, Taluka Gangapur. The title shows
that it is suit for possession of the said 40 R land.
Plaintiff claimed that he and defendant Sayyed
Noor were brothers and at Jogeshwari they had
ancestral property of 22 acres and 8 gunthas and
many years back the same was partitioned
between both the brothers. In Gat No.97,
defendant was given eastern part in his possession
and he claimed that, he himself had part on the
South(?). He claimed that, plaintiff got 11 acres 4
gunthas and defendant also got similar portion.
The suit claimed that, between the lands there was
north-south bandh dividing the field and 4-5 years
back the defendant Sayyed Noor broke the bandh
and started encoraching. The suit claimed that
defendant is trying to grab 1 acre land. The suit
claimed that, the defendant Sayyed Noor had
encroached upon 40 R land from his west
encroaching into the land of plaintiff from east.
Thus, the plaintiff claimed 40 R land from the
western portion of the field of defendant which was
in possession of the defendant. The suit claimed
that, such encroachment by defendant on the
western side of his field was found in the
measurement dated 8.12.2010.
8. Now if the present suit R.C.S. No.404/2013 is
perused, it shows that the plaintiff, apart from defendant,
Sayyed Noor added his children as defendants. In this suit

also, the title says that the suit is for recovery of 40 R land as
shown in the suit map. Additionally, it claims removal of
obstruction of way of 20 ft. x 600 ft. In this present suit also
the plaintiff claims that, field Gat No.97 of Jogeshwari is
ancestral property which was 22 acres 8 gunthas and there
was long standing partition between plaintiff and defendant
No.1. Here also plaintiff claimed that, his share was 11 acres
4 gunthas in the western half and the defendant No.1 had 11
acres 4 gunthas of the eastern half. The suit claimed that in
“recent times” defendant No.1, with the help of other
defendants, encroached on 40 R land of the plaintiff from the
eastern part of the land of plaintiff and is trying to create right
in the 1 acre land and the way of 20 ft. x 600 ft. and to sell
the same. In para 2 of the plaint, it is claimed that the
encroachment took place about three years back. Para 4 of
the plaint claimed that, at the time of partition, in the
northern part of the land of defendant, 20 ft. broad way was
given from the west. Because of the encroachment in the 1
acre land of plaintiff, defendants are not letting plaintiff use
that way and the said way has also been encroached.
9. From the comparison of both the plaints, it is quite

clear that, the plaintiff had in the earlier suit R.C.S.
No.30/2011 also claimed possession of 40 R land from the
western side of the field of defendant claiming that it was his
land which had been encroached. In that earlier suit, he
referred to the measurement dated 8.12.2010. Thus, at least
from 8.12.2010 plaintiff claimed he knew of the
encroachment. Looking to the map filed by the plaintiff, with
his plaint R.C.S. No.404/2013, if the said encroachment was
there even when the earlier suit was filed, the plaintiff did not
claim in that suit that the encroachment has obstructed his
right of way of 20 ft. x 600 ft. from the northern part of field
of defendant. Order II Rule 2 of C.P.C. requires that, suit
should include the whole claim which the plaintiff is entitled to
make. Plaintiff cannot first bring suit only to remove
encroachment and later another suit to remove some
encroachment and consequential obstruction to alleged way.
If right of way was there, it was obstructed even at the time
of earlier suit due to alleged encroachment. Plaintiff should
have in earlier suit itself claimed that the encroachment has
further obstructed his right of way. Plaintiff does not appear
to have done this when earlier R.C.S. No.30/2011 was filed.
Under Order II Rule 2 of C.P.C., such claim must be deemed

to have been relinquished and so barred. As regards the
claim of possession of 1 acre land from the western side of the
land of defendant, which according to plaintiff had been
encroached, both the suits are clearly based on same cause of
action. In R.C.S. No.404/2013, merely by saying that plaintiff
went to the defendant No.1 on 14.11.2013 requesting to give
back the possession of encroached land does not make out
fresh cause of action.
10. In earlier R.C.S. No.30/2011, plaintiff filed pursis
Exhibit 35 (Page 66 of present revision), requesting for
withdrawal of the suit. The Judge endorsed on the pursis
that, “Plaintiff wants to withdraw this suit. Hence, permission
granted unconditionally.”
11. There is then endorsement of the same Judge on
the plaint Exhibit E that, the suit is disposed of as withdrawn.
Thus, it is clear that the earlier suit field was withdrawn
unconditionally. Now it would be appropriate to refer to Rule
1 of Order XXIII which deals with withdrawal of suit or
abandonment of part of claim. Sub-rules (3) and (4) of the
said provision read as under :

“(3) Where the Court is satisfied, ---
(a) that a suit must fail by reason of some
formal defect, or
(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh suit for
the subject matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw from such suit
or such part of the claim with liberty to institute
a fresh suit in respect of the subject matter of
such suit or such part of the claim.
(4) Where the plaintiff ---
(a) abandons any suit or part of claim under
sub-rule (1) or
(b) withdraws from a suit or part of a claim
without the permission referred to in sub-rule
(3),
he shall be liable for such costs as the Court
may award and shall be precluded from
instituting any fresh suit in respect of such
subject matter or such part of the claim.”
12. If the above provision is kept in view, it is apparent
that the plaintiff withdrew R.C.S. No.30/2011 unconditionally
and without taking permission of the Court under above subrule
(3). This being so, the plaintiff would be precluded from
instituting fresh suit in respect of the same “subject matter”,
The subject matter of both the suits is same that, the plaintiff
is claiming that his land to the extent of 40 R has been

encroached by the defendant from the west of field of
defendant and he wants encroachment removed. In view of
Order XXIII Rule 4 of C.P.C., the subsequent suit R.C.S.
No.404/2013 would not be maintainable for above reasons.
13. It appears that, between the parties there have
been various other litigations also to which I need not make
reference for decision of the present matter.
14. The trial Court, without going into any details to
compare R.C.S. No.30/2011 with present R.C.S. No.404/2013,
in a vague manner, observed that, R.C.S. No.30/2011 was for
recovery of possession, but admittedly the said suit came to
be withdrawn on 16.9.2008 and moreover that, that suit was
filed only against Sayyed Noor. The impugned order of the
trial Court does not show that the trial Court has considered
the relevant provisions to see if the present suit R.C.S.
No.404/2013 was maintainable. Merely by adding sons of
defendant the bar of Order XXIII Rule 1(4) cannot be avoided
looking to the facts. For reasons recorded earlier, the second
suit is not maintainable.

I pass the following order :-
The revision application is allowed with costs.
The R.C.S. No.404/2013 filed by respondent No.1
– plaintiff Sayyed Minya Sayyed Burhan before
Civil Judge, Junior Division, Gangapur is dismissed
as barred under Order XXIII Rule 4 of the Code of
Civil Procedure, 1908.
(A.I.S. CHEEMA, J.)

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