State of H.P. vs Achhru Ram (dead) through LRs.

Surjit Singh, J.—The present Regular Second Appeal, by the Defendant, i.e. State of Himachal Pradesh, was admitted on the following substantial questions of law:

Whether the present suit of the Plaintiff was not maintainable in view of the fact that a suit was filed earlier on the same cause of action which was dismissed as withdrawn under Order 23 Rule 1 Code of Civil Procedure? .

Whether the suit of the Plaintiff was not within limitation as the grant was cancelled by the Deputy Commissioner, Divisional Commissioner and Financial Commissioner on 21.5.84, 26.6.85 and 26.11.1985 respectively and the suit was filed on 25.2.1988 as the period of limitation is one year?

Whether right to object is a personal right and as such after the death of the objector the legal representatives are not required to be impleaded as party?

Whether reporters of the local papers may be allowed to see the judgment?

Plaintiff-Respondent Achhru Ram was granted five bighas of land, under Nautor Rules, in the year 1974. Patta was issued in his favour. The very next year, an appeal was filed by one Bagwan Dass (now dead), before the Deputy Commissioner, alleging that Respondent was not eligible for grant of Nautor, on account of his income being more than Rs. 2,000/- per month and he being a member of a family headed by his father. That appeal was allowed and Nautor granted in favour of the Respondent was revoked. Achhru Ram filed further appeal and the revision, but without success.

Thereafter, the Plaintiff filed a suit, i.e. Civil Suit No. 62/1 of 87, seeking declaration that Nautor granted to him was valid and that the orders passed by the Deputy Commissioner, the Divisional Commissioner and the Financial Commissioner, revoking the grant, were illegal, void and ineffective qua his rights. He withdrew that suit, by making a statement and the same was dismissed as withdrawn on 26th November, 1987, vide order Ex. DF. Statement regarding withdrawal of the suit, which he made, is Ex. DG. Thereafter, he filed another suit, though he had not obtained any permission, at the time of withdrawal of the earlier suit, to file a fresh suit. It is out of that suit that the present appeal has arisen. In the suit, he sought the same declaration, which had been sought in the earlier suit.

Suit was contested by the Defendant-Appellant, both on merits and also on some technical grounds, including the plea that the Plaintiff-Respondent was precluded from filing fresh suit, on account of the withdrawal of the earlier suit. Respondent filed replication, in which he stated that the earlier suit had been withdrawn, with leave to file a fresh one on the same cause of action.

Various issues were framed by the trial Court. One of the issues pertained to resjudicata. judgment of the trial Court shows that plea of resjudicata was sought to be supported by the evidence, regarding withdrawal of the earlier suit, by means of statement Ex. DG. Trial Court rejected the plea, with the observation that withdrawal of the earlier suit made no difference. Issues based on merits were found in favour of the Respondent-Plaintiff and consequently the suit was decreed.

Appeal filed by the State in the Court of District Judge has been dismissed. Though a specific ground was not raised, before the District Judge, with regard to the suit being barred, on account of the withdrawal of the earlier suit, but finding on the issue, pertaining to resjudicata, was assailed.

I have heard the learned Counsel for the parties and gone through the record.

It is not in dispute that the earlier suit was also based on the same cause of action as the present one and the relief claimed in the two suits was also the same. Copy of the plaint, in the earlier suit, is also there on record, which is Ex. DE. A reading of the plaint shows that the relief claimed in the earlier suit was the same, as in the present suit and the cause of action pleaded was also the same. Statement Ex. DG shows that permission of the Court was not sought to file a fresh suit on the same cause of action, when the statement of withdrawal of the earlier suit was made. Order, dismissing the earlier suit as withdrawn, copy Ex. DF, also does not speak of any permission having been granted to the Plaintiff-Respondent.

In view of the abovestated position, substantial question of law No. 1 is answered in favour of the Defendant-Appellant and it is held that the suit, out of which the appeal has arisen, was barred, under Order 23 Rules 1 & (4)(b) of the Code of Civil Procedure.

Since the Plaintiff was precluded from filing the suit, as held hereinabove, other substantial questions of law, on which the appeal was admitted, become irrelevant.

As a result of the above discussion and answer to substantial question of law No. 1, appeal is accepted, judgments and decrees of the two Courts below are set aside and the suit of the Plaintiff-Respondent is dismissed.

Appeal stands disposed of accordingly.