Babu Singh and Another vs Smt. Radhabai and Others

Rohit Arya, J.—The instant revision petition is directed against the order dated 10.05.2013 whereby application filed by defendants u/s 12 of C.P.C. read with Order II Rule 1 and 2 read with Section 151 of C.P.C. has been rejected. Facts narrated in the said application are that 1/4th of the Suit property belong to one Sita Ram and was self acquired property. In Samvat 2020 (in the year 1963) on oral agreement the said land was given on patta on rent of Rs. 25/- to Harvilas S/o Badri Prasad. Mutation was done in favour of Harvilas. On such premises, Harvilas asserted himself as Bhumiswami of the suit land and obtained order from the Tehsildar for recording his name as Bhumiswami over the suit land.

Civil Suit No. 18-A/88 was filed for a declaration that the plaintiff Sita Ram is owner of 1/4th of the Suit property and possession and further for cancellation of the order dated 20.02.1986 passed by the Tehsildar mutating the name of applicant/defendant in the revenue record in respect of suit property However, the said Suit was dismissed in default for want of prosecution. This is the admitted position.

The instant Suit has been filed by the heirs of Sita Ram alongwith other co-plaintiffs for declaration of title with further declaration that they are in possession and permanent injunction of the disputed land and order of revenue authority, recording the name of the defendant/applicant as Bhumiswami, is bad in law. It is relevant to mention that prior to filing of the instant application, defendant had field an application u/s 11 C.P.C. purportedly on the ground that similar matter since dismissed bearing Civil Suit No. 18-A/88, the instant Suit was not maintainable on the principle of res judicata as provided u/s 11 of C.P.C. The said application was rejected by the trial Court on 8.10.2012 for the reason that the earlier Suit though was in connection with same subject matter but was not decided on merits, instead, the same was dismissed for default of non-appearance.

Again defendants have filed the instant application u/s 12 of C.P.C. read with Order II Rule 1 and 2 read with Section 151 C.P.C. For ready reference provisions contained in Section 12 which is quoted herein,

Bar to further suit--Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

Order II Rule 1 and 2 are quoted herein,

Suit to include the whole claim--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

A bare perusal of the aforesaid provisions as rightly held by the trial Court has no application to the facts in hand. Rule 2 says if the plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim as provided for under Sub Rule (1) he shall not afterwards sue in respect of the portion so omitted or relinquished.

Looking to the factual matrix of the case neither the plaintiff has omitted nor relinquished any claim made in the Suit earlier. In fact, earlier suit was dismissed for want of prosecution and there was no adjudication on the merits of the case. Such dismissal of suit in the opinion of this Court neither shall operate as res judicata u/s 11 of the C.P.C. nor the provisions contained in Order II Rule 1 and 2 shall have application for maintainability of the present Suit. The present Suit seeking a declaration and injunction in respect of Suit property needs to be adjudicated upon on merits, by affording opportunity to either sides as neither the subject matter has been adjudicated or decided on merits earlier nor any claim has been omitted or relinquished in earlier suit.

Counsel for the applicants cited a judgment in the matter of Govind Das and Another Vs. Vikram Singh and Others, . The facts of the case are distinguishable from the facts of the present case, hence, not applicable to the present case. The revision sans merit therefore deserves dismissed.