Dimbeswar Saikia vs State of Assam and Others

J.M. Srivastava, J.—This Plaintiff''s revision is directed against the order dated 26.2.77 passed in Title Suit No. 205 of 1976 by the learned Munsiff, Nowgong, order dated 1.3.77 in Title Suit No. 42 of 1974 and order dated 27.7.77 In Misc. Case No. 12 of 1977 passed by the learned Assistant District Judge, Nowgong.

Briefly, the facts giving rise to this revision are that the Petitioner had filed Title Suit No. 42 of 1974 against the order of dismissal from the service, damages for loss of remuneration, defamation and loss of prestige, etc,. The Defendant No. 11 was Inspector of Schools. No notice u/s 80 of the Code of Civil Procedure, hereafter the ''Code, having been served on the Defendant No. 11, there was formal defect in the suit. The Plaintiff Petitioner bad filed an application under Order 23 Rule 1 of the Code for withdrawal of the suit with permission to file fresh suit. The application was rejected by the court by order dated 4.2.76. The Petitioner came in Civil Revision No. 41 of 1976 to this Court, wherein by order dated 16.9.76, this Court set aside the order of the trial court dated 4.2.76. The operative portion of the order of this Court reads : "In the result, the impugned order is liable to be set aside which I accordingly do. The petition is allowed and the rule is made absolute." It appears that thereafter the learned trial court below considered the matter Afresh and taking the view that the Plaintiff had in an application filed prayed only for withdrawal of the suit, dismissed the suit. The Petitioners prayer for review was also rejected by order dated 27.7.77 also impugned in this revision. However, it appears that meanwhile in view of the period of limitation, the Petitioner had filed Title Suit No. 205/76 in the Court of Munsiff, Nowgong for the same relief�s. By order dated 26.2.77 also impugned in this revision, the learned Munsiff took the view that because the earlier suit was pending the suit could not proceed, and dismissed the suit. The Petitioner has come in revision.

We have heard Sri J.N. Sarma, learned Counsel on behalf of the Petitioner, and Sri D.P. Chaliha, learned Counsel Government Advocate for the State of Assam Opposite party No. 1.

On consideration of the submissions on behalf of the Petitioner and the materials, on record, in so far as the order dated 26.2.77 passed in Title Suit No. 205 of 1976 is concerned, we have no hesitation in coming to the conclusion that the order WAS wrong and cannot be sustained, for just because an earlier suit was pending, it could not be a ground for dismissal of the subsequent suit. All that could be said was that the hearing of the second suit could be stayed in view of the provision of Section 10 of the Code. The view taken by the learned trial court in T.S. No. 205 of 1976 therefore was clearly erroneous and cannot be sustained. The order dated 26.2.77 has, therefore, to be set aside.

In so far as the orders dated 1.3.77 in Title Suit No. 42 of 1974 and order dated 27.7.77 in Misc. Case No. 12 of 1977 are concerned, we are of the opinion that the learned trial court committed grave error in thinking that the matter was still open for its consideration, for the reasons that this Court bad in its order dated 16.9.76 in Civil Revision No. 41 of 1976 while holding that the order dated 4.2.76 was illegal and had set it aside, but as prayed by the Petitioner for permission to withdraw the suit with liberty to file fresh suit had also allowed the petition and made the rule absolute, which clearly meant that this Court had allowed the Petitioner�s application for withdrawal of the suit with liberty to file fresh suit. The learned trial court therefore had no business to go into the question afresh and take the view that the Petitioner had not prayed for permission to file fresh suit. It is needless to add that the subsequent order on the review petition dated 1.3.77 was also for the same reason erroneous and cannot be sustained. The impugned orders dated 27.7.77 and 1.3.77 being erroneous are liable to be set aside.

Since the matter is old and there have been different proceedings, it is made clear that in view of the order of this Court dated 16.9.76 the Title Suit No. 42 of 1974 was allowed to be withdrawn with liberty to file fresh suit. The subsequent suit Title Suit No. 205 of 1976 having had already been filed and its dismissal by order dated 26.2.77 being erroneous and (sic, is) liable to be set aside. Title Suit No. 205 of 1976 shall proceed.

For the aforesaid reasons, this revision is allowed the aforesaid impugned orders are set aside. Title Suit No. 205 of 1976 in the Court of Munsiff, Nowgong shall proceed, and the learned trial court shall endeavour to decide the suit expeditiously, in accordance with law. We make no order as to costs.