Dilip Bose vs Anandamoyee Bose

Jyotirmay Bhattacharya, J. - An application under Order 21, Rule 99 , 100 and 101 of the Code of Civil Procedure filed by the appellant which was registered as Misc. Case No. 44A of 2011, was held to be not maintainable by the learned Executing Court. Hence, the said application was rejected.

Challenging the said order, the appellant preferred an appeal being Misc. Appeal No. 15 of 2015 before the learned First Appellate Court. The learned First Appellate Court dismissed the said appeal with cost. Thus, the findings of the learned Executing Court regarding maintainability of the said miscellaneous case was approved by the learned First Appellate Court.

The legality and/or correctness of the said judgement and order passed by the learned First Appellate Court is under challenge in this second miscellaneous appeal.

A short question is raised before us as to the applicability of Order 23, Rule 1 of the Code of Civil Procedure in the facts of the present case. Admittedly, an ex parte eviction decree was passed against one Dolly Bose in Ejectment Suit No. 222 of 2005. Before the said eviction decree was put into execution, a suit was filed by the appellate herein seeking a declaration that the appellant is tenant in respect of the suit premises being premises No. 20 Sir Gurudas Road, Kolkata-700054 amongst other incidental reliefs. The said suit which was filed in the Court of the learned Civil Judge (Jr. Div.), 1st Court at Sealdah was registered as Title Suit No.143 of 2008.

During the pendency of the said suit, the respondents herein put the ex parte decree passed in Ejectment Suit into execution. The said execution case was registered as Ejectment Execution Case No.32 of 2010.

After the said execution case was filed by the respondents herein, the appellant herein filed the present application under Order 21, Rule 99 , 100 and 101 of the Code of Civil Procedure which was registered as Misc. Case No.44A of 2011.

The maintainability of the said Miscellaneous Case was challenged as the suit being Title Suit No.143 of 2008 which was filed by the appellant before filing the instant execution case, was withdrawn by them without seeking any leave to sue afresh on the selfsame cause of action.

In this context, a question was raised as to the maintainability of the present miscellaneous case in view of the provision contained in Order 23, Rule 1 (4) of the Code of Civil Procedure. The learned Appellate Court held that since the present miscellaneous case which is in the nature of a suit, was filed without any leave being taken for filing the said application before the executing Court at the time of seeking permission to withdraw their earlier suit being Title Suit No.143 of 2008, the instant miscellaneous case is not maintainable due to the bar contained in Order 23, Rule 1 (4) of the Code of Civil Procedure.

Let us now consider as to how far the learned appellate court was justified in coming to such conclusion in the facts as stated above. For proper appraisal of the matter at issue, we feel it convenient to quote the provision contained in Order 23, Rule 1 (4) of the Code of Civil Procedure which runs as follows:-

(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.

On perusal of the said provision, it appears to us that Order 23, Rule 1 (4) restricts the plaintiff''s right to institute any fresh suit in respect of subject matter of the earlier suit or part of the claim made in the earlier suit when he withdrew the earlier suit or part of his claim without obtaining permission from the Court in the manner as referred to in sub-rule 3.

Here is the case where we find that the proceeding under Order 21, Rule 99 , 100 and 101 of the Code of Civil Procedure which is in almost in the nature of the suit was not filed by the appellant after withdrawal of the earlier suit being Title Suit No. 143 of 2008.

The present miscellaneous case arising out of Order 21, Rule 97 proceeding was filed at a point of time when the suit being Title Suit No. 143 of 2008 filed by the appellant, was very much pending before the learned Trial Court. Since the present miscellaneous case was filed during the pendency of the earlier suit filed by the plaintiff, the restriction in instituting a fresh suit on the selfsame cause of action for want of permission to sue a fresh for the selfsame cause of action as contemplated under Order 21, Rule 1 (4) of the Code of Civil Procedure cannot be attracted as the said miscellaneous case was not filed after withdrawal of the earlier suit.

As such, we hold that the present miscellaneous case arising out of a proceeding under Order 21, Rule 97 of the Code of Civil Procedure cannot be held to be not maintainable on account of the bar contemplated under Order 23, Rule 1 (4) of the Code of Civil Procedure. Even the present miscellaneous case arising out of Order 21, Rule 97 proceeding cannot be held to be barred by the principle of res judicata simply because of the fact that order passed at an interlocutory stage, refusing to grant interim injunction in favour of the plaintiff in the earlier suit being Title Suit No. 143 of 2008 cannot operate as res judicata inasmuch as rejection of an interlocutory application does not finally decide the rights of the parties.

As such, when the rights of the parties are not finally decided, the bar of res judicata cannot be attracted.

We thus, hold that both the courts below erred in holding that the application under Order 21, Rule 97 of the Code of Civil Procedure filed by the appellant is not maintainable.

The impugned order is thus, set aside.

We thus, remand the said miscellaneous case being Misc. Case No. 44A of 2011 to the learned executing court for disposal of the said miscellaneous case on merit afresh.

Since the dispute is long pending, we request the learned executing court to dispose of the said miscellaneous case as early as possible but preferably by the end of February 2017 and if necessary by taking trial on day to day basis, without granting any unnecessary adjournment to any of the parties.

The appeal is thus, disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.