Habib Hasanbhai and Others vs Abdulhusain Kikabhai Trust and Others

C.L. Soni, J.—This appeal under Sec. 100 of the CPC (herein after referred to as ""the Code"" for the sake of brevity) is at the instance of

the original-defendants against whom the respondents-plaintiffs had filed the suit for declaration, possession and for permanent injunction. The case

of the plaintiffs in the suit is to the effect that the plaintiff is a trust and its trustees are owners of the suit property. Defendants have started believing

themselves to be the owners of the suit property and thus holding the suit property unauthorisedly without any right or title. Therefore, defendants

were asked to vacate the suit property and to remove their household articles from the suit property but they did not do so, therefore, legal notice

was issued through the Advocate on 5-9-1983 but then also, the suit property was not vacated, and therefore, the suit is required to be filed

seeking possession by declaring that the defendants have been occupying the suit property unauthorizedly and for permanent injunction restraining

the defendants from entering upon the suit property. On service of the summons, the defendants came forward with an application under Order 23,

Rule 1(4) of the Code stating that on the same facts and on the same allegations that the defendants are in unauthorized occupation of the suit plot,

earlier suit being Regular Civil Suit No. 6 of 1975 was filed by the predecessor-in-title of the plaintiffs and the predecessor-in-title of the plaintiffs

in the said suit filed purshis dated 27-12-1977 at Exh. 20 and had unconditionally withdrawn the suit. Inspite of such unconditional withdrawal of

the earlier suit, present suit is filed on the same facts and allegations for recovery of possession of the suit property, and therefore, present suit is

barred by the provisions of Order 23, Rule 1(4) of the Code.

The plaintiffs filed the reply to the said application and stated that the possession of the defendants is not lawful, and therefore, the plaintiffs have

right to file the suit and such suit could be filed at any point of time because of the continuous wrong on the part of the defendants. It was stated

that the defendants have continued to occupy the suit property unauthorizedly as trespasser and they have got no right to hold the suit property,

and therefore the plaintiffs are entitled to seek possession of the suit property.

Before the learned trial Judge, the defendants had placed on record certified copy of the plaint of earlier suit, withdrawal purshis and the order

passed thereon. On the basis of the documents available on record and after hearing the parties, the learned trial Judge came to the conclusion that

the plaintiffs have purchased the suit property from the earlier owner who had filed Regular Civil Suit No. 6 of 1975. The learned trial Judge

observed that the earlier suit was in respect of the same subject-matter and on the same allegations that the defendants have been in occupation of

the suit property unauthorizedly as trespasser and they are not entitled to hold the suit property and they be directed to hand over the possession of

the suit property. The learned trial Judge further observed that the earlier owner had unconditionally withdrawn the suit and the present suit is now

filed by the plaintiffs who are the purchasers of the suit property on similar ground that the defendants are trespassers in the suit property and they

are unauthorizedly occupying the suit property. On such facts, the learned trial Judge came to the conclusion that the plaintiffs are precluded from

filing the present suit for the same subject-matter the cause of action based on the same allegations which were there in the earlier suit, and

therefore, present suit is not maintainable as per Order 23, Rule 1(4) of the Code. On such conclusion, the learned trial Judge allowed the

application of the defendants and dismissed the suit of the plaintiffs under Order 23, Rule 1(4) of the Code.

The plaintiffs challenged the said judgment and order of the learned trial Judge by filing Regular Civil Appeal No. 189 of 1984 in the Court of

the learned Extra Assistant Judge, Bhavnagar. The learned appellate Judge came to the conclusion that the status of the plaintiffs is changed

because the earlier suit was by the plaintiff in his personal capacity and now the property is purchased by the trust and the present suit is filed on

the ground that the defendants are trespassers, therefore, the only question which is required to be decided at this stage is about the maintainability

of the suit, The cause of action in the present suit is different from the cause of action in the former suit. The learned appellate Judge further came to

the conclusion that though in earlier suit, it was pleaded that the defendants are trespassers and the same is the ground in the present suit, but such

ground has arisen in 1983 and the cause of action has incurred day-to-day, and therefore, the suit of the plaintiffs is maintainable for seeking

possession of the suit property from the trespassers. The learned appellate Judge further came to the conclusion that the property is a trust

property and still the defence of the defendants was not disclosed and in that circumstances, the suit of the plaintiffs was maintainable. On the

above said observations, the learned appellate Judge allowed the appeal of the plaintiffs by judgment and order dated 30-4-1987 and quashed

and set aside the judgment and order passed by the learned trial Judge below application Exh. 8. It is this judgment and order passed by the

learned appellate Judge which is under challenge in this appeal.

From the record of the case, it is found that initially, appeal from Order was filed which was admitted by this Court on 24-7-1986, and then the

same was permitted to be converted to Second Appeal by order dated 15-2-1995. From the record, it is not found that the substantial questions

of law were formulated while admitting the appeal.

This appeal was earlier taken up for hearing. Learned Advocate for the respondent Mr. Chokshy was not present and to give him opportunity

to appear before the Court, the appeal was adjourned to 21-9-2012 by order dated 18-9-2012. Then, on 21-9-2012 also, when the appeal was

taken up for hearing, learned Advocate for the respondent was not present and then also to give him more opportunity, this appeal was adjourned

to 3-10-2012. On 3-10-2012 the appeal could not be taken up for hearing. Today, when the appeal is taken up for hearing, learned Advocate

Mr. Choksy for the respondents is not present. The Court has, therefore, heard the learned Advocate Mr. Mehul S. Shah for the appellants.

Learned Advocate Mr. Shah has submitted that from the pleadings of the parties and on available admitted documentary evidence, the only

substantial question of law arising for the Court is whether the suit of the plaintiff was barred by the provisions of Order 23, Rule 1(4) of the Code.

Having gone through the pleadings of both the plaints with the pleadings in the application Exh. 8 as also the reply of the plaintiff Exh. 10, this

Court also finds that the above substantial question of law suggested by Mr. Shah arises for consideration of this Court. Therefore, same is

formulated for consideration of this Court as under:

Whether the suit of the plaintiff is barred by the provisions of Order 23, Rule 1(4) of the Code and whether the learned appellate Judge was

justified in reversing the order passed by the learned trial Judge whereby the suit of the plaintiffs was held to be barred by Order 23, Rule 1(4) of

the Code?

Learned Advocate Mr. Shah submitted that once the earlier suit was filed by the predecessor-in-title of the present plaintiffs for recovery of the

possession of the suit property on the same allegations and once the said suit was unconditionally withdrawn by the earlier owner of the suit

property, present plaintiffs being the purchasers of the suit property would be bound by such unconditional withdrawal of the earlier suit by their

predecessor-in-title. Mr. Shah further submitted that the learned appellate Judge was not right in coming to the conclusion that the earlier suit was

filed by the earlier owner in his personal capacity and now the suit is filed by the trust and its trustees, and therefore, they are entitled to seek the

eviction of the defendants on the ground that the defendants cannot continue to hold the suit property unauthorizedly because the status of the

defendants is of trespassers. Mr. Shah submitted that for the purpose of provisions of Order 23, Rule 1(4) of the Code, allegations in the plaint,

cause of action, subject-matter of the suit are relevant and not whether the earlier suit was filed by the earlier owner in personal capacity and the

subsequent suit is by the trust. Mr. Shah submitted that if this is permitted, then, the purpose and object of the provisions of Order 23, Rule 1(4) of

the Code would be frustrated because the party filing the first suit might take undue advantage by filing the suit on the same allegations and same

cause of action by transferring the suit property in camouflage manner, therefore, change of ownership is hardly of any relevance if the subsequent

suit is found to have been filed on the same allegations and the same cause of action and for the same relief. Mr. Shah submitted that the word

plaintiff used in Order 23 would include the purchaser for the purpose of deciding as to whether the suit is barred by Order 23, Rule 1(4) of the

Code. Mr. Shah submitted that simply because the subsequent suit was filed in the year 1983, same would not be a ground to come to the

conclusion that the plaintiffs are not precluded from filing the later suit if the allegations in both the suit are otherwise of the same nature, in respect

of the same subject-matter and for the same cause of action and for the same kind of relief. Mr. Shah has cited the decision in the case of

Balkrishna Savalram Pujari and Others Vs. Shree Dnyaneshwar Maharaj Sansthan and Others, to dislodge the conclusion reached by the learned

appellate Judge that the cause of action occurred to the plaintiff day-to-day, and therefore, the suit filed by the plaintiffs in the year 1983 after long

period was maintainable. Learned Advocate Mr. Shah pointed out that once the wrongful act had taken place, its effect for the purpose of

limitation and cause of action has to be from the day such wrongful act took place. Learned Advocate Mr. Shah has pointed out that if the suit for

the same kind of cause of action arising earlier is permitted to be filed for the same subject-matter on the ground that the wrongful act has

continued to incur day-to-day, there will be no end to filing of number of litigations for the same subject-matter and for the same kind of wrongful

act. Mr. Shah has submitted that the wrongful act in the present case alleged against the defendants had completely ousted the original owner who

had sought possession of the suit property from the defendants by filing the suit, therefore, resultant injury from the wrongful act was complete. Mr.

Shah submitted that filing of the later suit on the same allegations and on the same cause of action is not saved by Order 23, Rule 1(4) of the Code

and if that was so, the Legislature would have provided that if the later suit though filed for the same allegations and for the same subject-matter but

being filed beyond the particular time-limit would not be barred by such provisions of Order 23, Rule 1(4) of the Code. Mr. Shah submitted that in

fact, learned appellate Judge attempted to read such eventuality in the provisions of Order 23, Rule 1(4) of the Code which is not permissible. Mr.

Shah submitted that it is undisputed that the plaintiffs have purchased the suit property from the earlier owner who had filed the earlier suit on the

same allegations and for the same cause of action and for the same relief and consciously withdrew the earlier suit, and therefore, for all purposes,

suit of the same nature by the present plaintiffs is barred by Order 23, Rule 1(4) of the Code. He, therefore, urged to allow the appeal on the

above said substantial question of law.

Having heard the learned Advocate for the appellant, having perused copy of the plaint in earlier suit being Regular Civil Suit No. 6 of 1975 and

copy of the plaint in the present suit and having perused copy of application Exh. 8 filed by the defendants under Order 23, Rule 1(4) of the Code

as well as copy of reply Exh. 10, it appears that the former suit was filed by the predecessor-in-title of the present plaintiffs alleging that the father

of the defendants was not the tenant of the suit property but was permitted to occupy the suit property as servant and on his death, his service

since came to end, defendants being the heirs of the said deceased person, are not entitled to use the property as heirs of the said deceased person

and still the defendants have trespassed upon the suit property and are in illegal possession of the suit property. Thus, possession of the suit

property is asked from the defendants in the former suit on the allegations that the defendants are trespassers in the suit property and they are in

unauthorized possession of the suit property. Such were the bundle of facts in the former suit which could be said to be the subject-matter of the

former suit. Relief asked for in the former suit is also for recovery of possession of the suit property from the defendants and for decree of mesne

profit for the period 1-12-1972 to 28-2-1975 at the rate of Rs. 100/- per month. In the former suit, the defendants had already filed the written

statement and opposed the suit inter alia stating that the father of the defendants was not holding the property as servant. It was also stated that the

father of the defendants and then the defendants have been in possession of the suit property for the last sixty years and the plaintiff was not entitled

to ask for the possession from the defendants on the ground that the defendants have been in unauthorized occupation of the suit property. It is

after this written statement, the plaintiff presented purshis Exh. 20 on 27-12-1977 stating that the plaintiff did not want to proceed with the suit and

wanted to withdraw the suit and refund certificate be given to his Advocate. On the said application, the Court passed order on 27-12-1977

which reads as under:

As per withdrawal purshis Exh. 20, this suit is withdrawn under Order 23, Rule 1 C.P.C. with no order as to cost.

Court-fee Stamp refund certificate to be issue to the plaintiff or his Advocate Shri H.C. Dave.

So far as the present suit is concerned, the subject-matter of the suit as could be found from the plaint can be said to be similar subject-matter

like the former suit. In the plaint of the present suit, the plaintiffs have averred that the defendants are heirs of deceased Hasanbhai Khanbhai and

have started treating themselves as owners of the suit property but in real sense, they are trespassers and they have no right or authority to remain

in the property of the trust. Their entry on the property is illegal and their possession is unauthorised. They were, therefore, asked to vacate the suit

property and to take away their belongings-articles from the suit property but they are putting forward their rights in the suit property, and

therefore, they were served with notice through Advocate to vacate the suit property. The cause of action stated in the suit is that the defendants

are in illegal and unauthorized occupation of the suit property and they have not vacated the suit property even after the notice of Advocate and

since their illegal and unauthorised occupation of the suit property has continued, cause has arisen for removing the defendants from the suit

property. Relief asked for in the suit is for passing decree for handing over vacant and peaceful possession of the suit property to the plaintiffs and

for permanent injunction restraining defendants from entering upon the suit property and also for mesne profit. The only difference in the pleadings

between the two suits is that in the earlier suit, the plaintiff had averred that the father of the defendants was not the tenant, but was permitted to

occupy the suit property as servant, and therefore, the defendants are unauthorized occupants. This part of the pleading is not forming part of the

pleadings in the present suit. However, the present suit is certainly based upon the similar kind of allegations which were there in the former suit to

the effect that the defendants are trespassers and are in illegal and unauthorized occupation and possession of the suit property and they are

required to be removed from the suit property. In my view, therefore, the bundle of facts in the present suit which constitutes the subject-matter of

the suit are in no way different from the bundle of facts which constituted the subject-matter in the former suit. The present suit might not contain

the exact pleadings which were there in the former suit but that by itself would not make any difference insofar as the subject-matter of the suit is

concerned. Not only the subject-matter of the present suit is similar one but even the relief prayed for is also identical in nature. Purpose of filing

the present suit is as also of the former suit was the same and it was to recover the possession of the suit property from the defendants on the

ground that the defendants are in illegal and unauthorized possession of the suit property. In view of the above proved facts wherefrom it is not

difficult to come to the conclusion that the subject-matter of both the suits was same, the question would then arise as to whether the unconditional

withdrawal of the former suit by the predecessor-in-title of the plaintiffs would preclude the present plaintiffs from filing the present suit by virtue of

the Order 23, Rule 1(4) of the Code and whether the bar contained in Order 23, Rule 1(4) of the Code would apply to the present plaintiffs who

were not the plaintiffs in the former suit?

It is required to be noted that the plaintiffs in the present suit are not setting up independent title to the suit property. It is proved fact that the

plaintiffs are purchasers of the suit property and have thus stepped into the shoes of the predecessor-in-title of the suit property, therefore, for the

purpose of Order 23, Rule 1(4) of the Code, purchaser of the suit property who filed the suit on same subject-matter for same relief to recover

possession from the defendants are to be taken and treated as plaintiffs even if such purchaser was not the plaintiff in the former suit but such

purchaser has to be taken as plaintiff as referred in Order 23, Rule 1(4) of the Code. At this stage, learned Advocate Mr. Shah has invited

attention of this Court to the provisions of Sec. 146 of the Code and submitted that the guidance can be taken from the said provisions so as to

come to the conclusion that the present suit filed by the plaintiffs can be said to have been filed by the persons claiming under the plaintiff who had

filed the former suit because the present plaintiffs are the purchasers of the suit property, and therefore, they can be said to be claiming under the

original owner from whom they have purchased the suit property especially when the cause for filing the suit and the relief prayed for both are

based on the same subject-matter and same kind of allegations. Section 146 reads as under:

Proceedings by or against representatives:- Save as otherwise provided by the Code or by any law for the time-being in force, where any

proceedings may be taken or application made by or against any person, then, the proceedings may be taken or the application may be made by

or against any person claiming under him.

I find that what Mr. Shah has stated could be the correct view of the matter because the plaintiffs have not set up the independent title in

respect of the suit property. Therefore, they can be said to be the persons claiming under the original owner who had filed the former suit. Viewing

from the above angle, it clearly appears that the suit of the plaintiffs was barred by the provisions of Order 23, Rule 1(4) of the Code. There is no

escape from the legal effect flowing from the provisions of Order 23, Rule 1(4) of the Code, once it is found that the subject-matter of both the

suits is the same and the relief prayed for is also same. However, the learned appellate Judge has recorded that the cause of action arising in the

year 1983 can be said to be different because of the passage of time and such cause of action has continued to be incurring from day-to-day, and

therefore, the suit would be maintainable. In my view, such conclusion of the learned appellate Judge if allowed to stand, would run counter to the

object and purpose of Order 23, Rule 1(4) of the Code. Simply because long time had elapsed after the former suit was withdrawn, that would

not change the cause of action for filing the latter suit without there being any change in the ultimate base of the suit and the cause of action of the

suit and the relief of the suit. Rule precluding filing of the another suit is imperative and the bar contained in Order 23, Rule 1(4) of the Code is

absolute and the long passage of time cannot take away the statutory bar imposed by Order 23, Rule 1(4) of the Code.

In the case of Balkrishna Savalram Pujari and Others Vs. Shree Dnyaneshwar Maharaj Sansthan and Others, Hon''ble Supreme Court has

observed in Para 31 as under:

In dealing with this argument, it is necessary to bear in mind that Sec. 23 refers not to a continuing right but to a continuing wrong. It is the very

essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for

the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong, even though, the damage

resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act

constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may

be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Sec. 23 can

be invoked. Thus, considered it is difficult to hold that the trustees'' act in denying altogether the alleged rights of the Guravs as hereditary

worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees

in the said litigation had injured effectively and completely the appellants'' rights though the damage caused by the said decree subsequently

continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their

dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the

appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it

cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action

de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is

complete at the date of the ouster and so there would be no scope for the application of Sec. 23 in such a case. That is the view which the High

Court has taken and we see no reason to differ from it.

From the pleadings in the former suit, it could be clearly made out that by the alleged wrongful act on the part of the defendants, ouster of the

original owner of the property was complete. In the present suit, the cause of action has arisen on the same wrongful act of the defendants.

Therefore, it can never be said from the facts of the case that the cause of action has continued to incur day-to-day as observed by the learned

appellate Judge. In light of the above, I am of the view that the suit filed by the plaintiffs was clearly barred by Order 23, Rule 1(4) of the Code

and the learned trial Judge has not committed any error in holding that the suit of the plaintiff was barred by the provisions of Order 23, Rule 1(4)

of the Code, and has therefore, rightly dismissed the suit under said provisions. The learned appellate Judge, was therefore, not justified in

interfering with such judgment and order passed by the learned trial Judge on the ground and reasoning not germane to the issues involved in the

case. Substantial question of law is, thus, answered accordingly and the ultimate result would be to allow the present appeal. In the result, this

appeal is allowed. The judgment and order passed by the learned Extra Assistant Judge, Bhavnagar dated 30-4-1986 in Regular Civil Appeal No.

189 of 1984 is hereby quashed and set aside and the judgment and order passed by the learned trial Judge is hereby restored.