Ranbir Singh vs Dalbir Singh and Others

Sanjiv Khanna, J.—This Order will dispose of two preliminary legal issues framed on 3rd September, 2008, which are as under:

(1) Whether the suit for declaration simplicitor, without prayer for possession is maintainable in view of averments made in paragraph 8 of the plaint?

(2) Whether the suit is maintainable as the plaintiff has already filed Suit No. 300/1997 before the Civil Judge, Delhi in respect of the land in question?

For the purpose of deciding the aforesaid issues, I have taken into consideration the averments made in the plaint and the admitted documents. The admitted facts may now be noticed.

(I) Mr. Dalbir Singh, defendant No. 1 herein was owner of land admeasuring 40 bighas 16 biswas (8.5 acres approx.) situated in Mouza Chattarpur, Teh. Mehrauli, in Khasra No. 1656 (1-16), 1657 (4-16), 1658 (4-16), 1659 (4-16), 1672 (4-16), 1673-A-2 (4-16), 1674 (4-16), 1675 (4-16), 1666 (1-8) (hereinafter referred to as "the property", for short).

(II) It is the case of the plaintiff that defendant No. 1 sold the property through his attorney and son-in-law, Mr. Karnail Singh to M/s. Homesteads Industries-defendant No. 3. The land was mutated with necessary revenue entries in favour of defendant No. 3 in 1991.

(III) Defendant No. 1 on 27th January, 1992 filed an FIR against Mr. Karnail Singh for forging his signature on the Power of Attorney.

(IV) Defendant No. 1 also filed a civil suit in Delhi High Court in the year 1991 against Mr. Karnail Singh and the sole proprietor of Defendant No. 3, This suit was subsequently transferred to the District Court. On 29th April, 1994, defendant No. 1, it is alleged by the plaintiff, withdrew the said civil suit. It is stated by the plaintiff that the status quo order passed on 19th September, 1991 came to an end and ceased when the civil suit was withdrawn on 29th April, 1994.

(V) On 26th August, 1994, defendant No. 1 moved an application for restoration making an allegation that the suit was withdrawn by his lawyer without his knowledge. The application was allowed on 18th October, 1996 and the suit was restored. Application for restoration of the interim order was also filed but no order was passed on the said application. The said suit is still pending.

(VI) Mr. Ranbir Singh, plaintiff herein was not a party to the aforesaid civil suit which was filed by defendant No. 1. (However, during the course of hearing, learned senior advocate for the plaintiff herein had submitted that the plaintiff had filed a civil revision and the same stands allowed with a direction that the plaintiff herein should be impleaded as a party to the said civil suit but detailed judgment was awaited. The said statement has been taken on record).

(VII) The plaintiff pleads that he has purchased the suit property vide nine separate sale deeds executed by defendant No. 3 between 7th December, 1995 to 29th August, 1996. These sale deeds have been executed after the civil suit filed by the defendant No. 1 was dismissed on 29th April, 1994 but before it was restored on 18th October, 1996.

(VIII) The plaintiff on or about 21st June, 1997 filed Suit No. 300/1997 for permanent injunction before the Additional District Judge, Tis Hazari Court. It is alleged that the plaintiff was owner in possession of the property but the defendant No. 1 herein along with Mr. B.S. Saini were trying to forcibly take possession. plaintiff claims title in the property on the basis of the sale deeds executed in his favour by the defendant No. 3 herein. It is also stated in the suit that the defendant No. 1 herein was the original owner of the property but had sold the same to defendant No. 3 and thereafter has no interest in the suit property. Thus the suit for injunction is based on both title and possessory right.

(IX) On 23rd June, 1997, learned Additional District Judge passed an interim order in favour of plaintiff herein restraining Mr. Dalbir Singh, defendant No. 1 herein and Mr. B.S. Saini from interfering unlawfully with possession of the plaintiff in the suit property.

(X) It is the case of the plaintiff herein that in spite of injunction order, defendant No. 1 herein in connivance with the local police dispossessed the plaintiff from the suit property on 24th June, 1997. An application under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) is pending before the learned Additional District Judge wherein the said issue of alleged dispossession is under consideration. The application has not been disposed of.

(XI) Defendant No. 1 herein is contesting the suit and the contempt application claiming that he has always been in actual physical possession since 1951 and he had not dispossessed the plaintiff on 24th June, 1997 and the alleged claim of the plaintiff is false. The defendant No. 1 herein has also made a counter claim in form of decree of permanent injunction stating that he is the owner of the suit property and is entitled to injunction against the plaintiff herein. For the purpose of deciding the preliminary issues, the contentions raised are not being accepted.

(XII) While the above suits were pending, the plaintiff herein filed an application before the Executive Magistrate u/s 145/146 of the Code praying for attachment of the property alleging that he had been forcibly dispossessed by the defendant No. 1 herein.

(XIII) On 11th July, 2000, Sub-Divisional Magistrate (South) District Mehrauli passed a preliminary order u/s 145(1) and inter alia, recorded that there existed disputes between the parties. On 14th November, 2000, an order u/s 146(1) of Code of Criminal Procedure, 1973 was passed appointing SHO, P.S. Mehrauli as a Receiver of the property.

(XIV) This Order dated 14th November, 2000 was set aside by the High Court in Criminal Revision No. 540/2000 with a direction that defendant No. 1 be given possession of the property within ten days.

(XV) The Supreme Court by Order dated March 20, 2002 upheld the Order of the High Court observing that the same was justified and correct. Thus the Order passed by the Sub-Divisional Magistrate u/s 146(1) of the Code of Criminal procedure, 1973 appointing SHO, Mehrauli as Receiver of the property which was set aside by the High Court was upheld. Supreme Court however held that the High Court was in error in dealing with the Criminal Revision Petition as if it was exercising appellate jurisdiction. It was held that u/s 145 of the Code of Criminal Procedure, 1973, the Sub-Divisional Magistrate was not concerned with the question of title and ownership and the issue for consideration was actual physical possession of the property on the date of the preliminary order and dispossession, if any, within two months prior to the said date. The question of relative civil rights between the parties could not have been examined by the High Court in the Criminal Revision Petition under the Code of Criminal Procedure, 1973. Parties were asked to move to the civil court and the status quo order regarding possession was to continue for three weeks. In other words, the property was to remain in possession of the S.H.O. for three weeks and abide by the Order of the Civil Court.

With the above admitted factual background as accepted by the plaintiff, the two issues are being separately examined.

Issue No. 1

It is admitted case of the parties that as on the date of filing of the present civil suit, which was filed on 6th April, 2002 possession of the suit property was with the SHO, Mehrauli in terms of the status quo passed by the Supreme Court. Possession continues to be with SHO, Mehrauli. It is the contention of the defendant No. 1 that the plaintiff was/is not in possession of the suit property and therefore the suit for declaration of ownership simplicitor is not maintainable in view of Section 34 of the Specific Relief Act, 1963. It is submitted that the Suit is liable to be dismissed as the plaintiff has not made a specific prayer for possession.

Neither the plaintiff nor the defendant No. 1 as on the date of the filing of the present suit was in possession of the suit property. SHO, Mehrauli as a Court Receiver was in possession of the suit property. He came into possession of the suit property pursuant to orders passed u/s 145/146(1) of the Code of Criminal Procedure, 1973. This Order was set aside by the High Court and the Supreme Court but pursuant to directions passed by the Supreme Court, SHO, Mehrauli continued to remain in possession till this Suit was filed. The Supreme Court in Deokuer and Another Vs. Sheoprasad Singh and Others, , has opined that when a property is under an order of attachment passed u/s 145, Cr.P.C., it is not necessary to ask for relief of delivery of possession in the civil proceedings. The aforesaid judgment was followed by this Court in Autoville Finance Pvt. Ltd. v. Swastic Finance Corporation Limited and Anr. reported in AIR 1971 Del. 310, wherein it was held that where a property is in custodia legis of a third person pursuant to orders passed by a court, the plaintiff need not specifically ask for decree of possession. Possession will be delivered by the holder, a third person, as per the direction given by the Court where the civil suit is pending. The Court specifically noticed distinction between "possession" and "custody" and observed that a receiver holds a property without claiming any legal interest for the benefit of the successful party. Custodia legis is under an obligation to restore and handover possession of the property in terms of directions given by the Civil Court and therefore relief of possession need not be separately asked for u/s 34 of the Specific Relief Act, 1963. In view of above, Issue No. 1 is decided in favour of the plaintiff and against the defendant No. 1. It is held that the plaintiff is not required to make a specific prayer for possession.

Issue No. 2

It is admitted factual position that there are two earlier civil suits which are pending.

The first civil suit for injunction is filed by defendant No. 1 against Mr. Karnail Singh and defendant No. 3 herein. plaintiff has now been impleaded as a party to the said suit. It is admitted case of the parties that the defendant No. 1 in the said plaint claims ownership rights in the property and has alleged that Mr. Karnail Singh who is his son-in-law had no authority, power to sell and execute sale deeds on his behalf in favour of defendant No. 3 herein. I may also note that counsel for the parties have, during the course of arguments on 22nd July, 2008, admitted that this suit should be treated as the main suit. The statement of the parties is recorded in the said Order.

The second suit (suit No. 300/1997) is also a suit for permanent injunction, which was filed by the plaintiff on or about 21st June, 1997. An ex parte injunction order dated 23rd June, 1997 was passed in the said suit restraining the defendant No. 1 herein from interfering with the possession of the plaintiff. In the said suit, an application under Order XXXIX, Rule 2A of the Code has been filed by the plaintiff with the allegation that on 24th June, 1997, the defendant No. 1 had forcibly dispossessed the plaintiff. The application is pending. The suit is based on the plaintiff herein''s right as an owner in possession of the property. It is claimed that the plaintiff herein had purchased the suit property from defendant No. 3 herein after defendant No. 1 had already transferred and sold his interest in the suit property to defendant No. 3 herein and therefore defendant No. 1 cannot claim ownership right and disturb possession of the plaintiff. The said suit filed by the plaintiff herein is based upon title of the plaintiff as well as right to possession. Some of the relevant paragraphs of the plaint in this suit read;

That the plaintiff is the owner in possession of Khasra No. 1656(4-16), 1657 (4-16), 1658 (4-16), 1659 (4-16), 1672 (4-16), 1673/1-2(4-16), 1674(4-16), 1675(4-16), 1666/1(1-8), total area measuring 40 bighas 16 biswas, situated in Mauja Chhattarpur Tehsil Mehrauli, Delhi.

That the plaintiff submits that the plaintiff purchased the abovesaid property from M/s. Home Industries and the possession of the said property was delivered to him at the time of purchase, since then the plaintiff is in continuous and uninterrupted possession of the suit property.

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That the defendant No. 2 had been the original owner of the property who sold out the same to M/s. Home Industries and from M/s. Home Industries the plaintiff has purchased the property as such the defendant No. 2 has got nothing to do with the property in question because after having sold the property, he is left with no interest in the property and has already washed off his hands qua the property in question.

That the plaintiff submits that the defendant No. 2 had been instrumental in purchase of the property in question, but now he is in hands with gloves with the defendant No. 2 and since the rates of the property have gone high, wants to take undue advantage of the property and to make money out of the same, is instigating and siding with the defendant No. 2.

Defendant No. 1 herein is defendant No. 2 in the said suit. Defendant No. 1 herein has filed written statement and had also made a counter claim, seeking permanent injunction for restraining the plaintiff from interfering with his possession.

The question is whether this third suit filed by the plaintiff is maintainable or is barred by law. "The answer requires answer to two questions, namely (1) whether cause of action as pleaded in Suit No. 300/1997 filed by the plaintiff herein is same as in the present suit" and (2) If answer to question (1) is in affirmative, whether the plaintiff can maintain and file this second suit on the same cause of action, when his first suit No. 300/1997 is still pending?

Learned Senior Counsel for the plaintiff had submitted that the Supreme Court has directed and given liberty to the plaintiff to file the present suit in their Order dated 20th March, 2002. The relevant portion of the Order reads:

...deciding the questions it was neither necessary nor relevant for the High Court to have considered the matters relating to title to and right of possession of the property. Further, both the parties in the case have filed suits seeking decree of permanent injunction against each other and in the suit filed by the appellant an order of interim injunction has been passed and an objection petition has been filed by respondent No. 1. The suits and the interim order are pending further consideration before the civil court.

In these circumstances, we are of the view that while maintaining the order of the High Court quashing the preliminary order passed by the Sub-Divisional Magistrate u/s 145(1) and the order of attachment of the property u/s 146(1) Cr.P.C., leave should be granted to the parties to approach the civil court for appropriate interim order and the civil court should deal with the application for interim order without being influenced by the observations made/findings recorded by the High Court in the impugned judgment. It is ordered accordingly.

In order to enable the parties to approach the civil court for interim order and with a view to avoid further complication in the matter, the interim order passed by this Court on 18.01.2002 directing status quo regarding possession of the property in dispute to be maintained shall remain in force for a period of three weeks from today.

The appeal is disposed of on the above terms.

It is clear from the reading of the said Order that the Supreme Court was aware and conscious that the two suits for permanent injunction were already pending before the civil courts. In these circumstances, parties were directed to approach the civil court for appropriate interim order. No direction or liberty was granted to any party to file a new suit. The intention of the Supreme Court is apparent when it stated that "...parties in the case have already filed suits seeking a decree for permanent injunction against each other and in the suit filed by the appellant an order of interim injunction has been passed and an objection petition has been filed by respondent No. 1", i.e. defendant No. 1 herein. Parties were given right to approach the Civil Court for interim order but it was directed that the interim order passed by the Supreme Court on 18th January, 2002 directing maintenance of status quo regarding possession of the property shall remain in force for a period of three weeks from the said date. In other words, the interim order passed by the Supreme Court directing status quo with regard to the possession i.e. with SHO as the Receiver, would remain in force for a period of three weeks from the date of the said Order, i.e. 20th March, 2002. The plaintiff instead of moving appropriate application before the Civil Court has preferred to file the present civil suit. The plea and contention of the plaintiff that the third suit has been filed in view of the direction and liberty granted by the Supreme Court is rejected. New suit would create further complications and open up a new litigation.

Question No. 1

(1) Whether cause of action as pleaded in Suit No. 300/1997 filed by the plaintiff herein same as in the present suit ?

The term "cause of action" is not defined but it is well settled means; every fact, if traversed, will negate the plaintiff''s right to judgment. Explaining the term "cause of action" the Supreme Court in The The State of Madras Vs. C.P. Agencies and Another, had held as under:

We have been referred to the well-known observations of Brett J. in Cooke v. Gill (1873) 8 CP 107 and to the definition of "cause of action" given in Read v. Brown (1888) 22 QBD 128 which are all referred to in AIR 1949 78 (Privy Council) Lord Esher M.R., defined "cause of action" to mean.

Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.

Fry L.J. agreed and said:

Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of action.

To the same effect are the observations of Lopes L.J. in Mst. Chand Kour v. Partab Singh 15 Ind App 156. Lord Watson observed:

Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers, entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.

The meaning of "cause of action" being thus well understood, we now proceed to consider whether the cause of action with which the plaintiff has come to court has been stated sufficiently in the notice given u/s 80. For this purpose we must first see what is the cause of action set forth in the plaint.

The question how to decide, whether two separate suits are based upon the same cause of action has come up for consideration before several courts while examining the bar of Order II, Rule 2 of the Code. Same principles will apply to the present case also. In AIR 1949 78 (Privy Council) the following five principles were summarized:

The principles laid down in the cases thus far discussed may be thus summarized:

(1) The correct test in cases falling under Order 2, Rule 2 is whether the claim in the new suit is, in fact, founded on cause of action distinct from that which was the foundation for the former suit (Moonshee Busloor Ruheem v. Shumsoonnissa Begum 8 WR PC 3)

(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment (Read v. Brown (1889) 22 QBD 128)

(3) If the evidence to support the two claims is different then the causes of action are also different (Brunsden v. Humphery) (1884) 14 QBD 141

(4) The causes of action in the two suits may be considered to be the same if in substance they are identical (Brunsden v. Humphery)

(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers "to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour" (Miss. Chand Kour v. Partab Singh) 16 Cal 98 (PC) This observation was made by Lord Watson in a case u/s 43 of the of 1882 (corresponding to Order 2, Rule 2) where plaintiff made various claims in the same suit.

These principles have been approved by the Supreme Court in Kewal Singh Vs. Smt. Lajwanti, .

The claim or right of the plaintiff as an owner and that he was in possession of the property or whether after passing of the interim order by the Court on 23rd June, 1997 he was forcibly dispossessed is subject matter of the Civil Suit No. 300/1997 filed by the plaintiff before the Addl. District Judge. The foundation and media of the said suit is sale/transfer of rights by defendant No. 1 in favour of defendant No. 3 and subsequent transfer of rights by defendant No. 3 to the plaintiff herein with possession.

The plaintiff by the present suit is again seeking adjudication and decision on the same claim/rights and subject matter as raised and pending before the learned Additional District Judge in Suit No. 300/1997. The plaintiff in the present suit claims his right in the suit property on the basis of sale deeds executed by defendant No. 3 in favour of the plaintiff. The two suits, therefore, overlap and are based on the same cause of action or claim of the plaintiff. It cannot be said that the present suit is based upon a different and distinct subject matter and foundation. Both the suits proceed on the basis that the plaintiff is the owner of the property and has legal and valid title with possession. The plaintiff is entitled to enjoy possession of the property as an owner and therefore entitled to permanent injunction. Application under Order XXXIX, Rule 2A of the Code proceeds on the basis that inspite of the ex parte injunction order passed on 23rd June, 1997, the defendant No. 1 had dispossessed the plaintiff on 24th June, 1997. It was admitted by the counsel for the plaintiff that the question whether any dispossession had taken place is to be decided by the civil court while deciding the application under Order XXXIX, Rule 2A of the Code and not by this Court. The plaintiff in no uncertain terms has stated that he does not want to withdraw civil Suit No. 300/1997 and the application under Order XXXIX, Rule 2A of the Code. Thus the foundation and the subject matter of the two suits is identical. Evidence which is to be led by the plaintiff in the two suits is same, i.e. that the plaintiff is owner in view of the sale deeds executed by defendant No. 3 and he was in possession of the suit property before being illegally dispossessed after filing of the civil suit No. 300/1997 before the Additional District Judge and after the said injunction order was passed by the Additional District Judge against Mr. Dalbir Singh, defendant No. 1 herein.

Learned senior counsel for the plaintiff had urged that the reliefs/prayers in the present suit are different and distinct from the relief of permanent injunction prayed for by the plaintiff in Suit No. 300/1997. Specific reference was made to prayer ''c'' in the present plaint, which reads;

c) declaration that the report of DCP dated 1st April, 1997, report of Patwari dated 9th May, 1997 and report of SDM dated 13th May, 1997 are non-est and null and void in the eyes of law and do not effect the rights; title and interest of the plaintiff and do not vest the Defendant with any right, title or interest of any nature whatsoever in the suit property;

As per the five principles mentioned above, reliefs prayed for in this suit or before the District Court is not the determining factor. Prayer ''c'' in the present suit does not change the character and the subject matter or the foundation of the two suits, which remains the same, i.e. documents of title executed by defendant No. 3, in favour of the plaintiff and the plaintiff was in possession of the suit property before being dispossessed in violation of the stay order in Suit No. 300/1997. The present suit is not based on separate or independent cause of action.

Reports of Patwari, D.C.P. and the S.D.M. are merely evidences and do not change the nature and character of the two suits. A plaint has to be read meaningfully and not formally. It should not be dissected and segregated. Though, no inversions should be made into any paragraph in the plaint, it is the substance and not merely the form which has to be gathered without additions and subtractions of words. Intention of the party is to be gathered primarily from the tenor and the averments made in the pleadings taken as a whole. As per Order VI, Rule 2 of the Code, pleadings are only to contain statements in concise form and material facts i.e. facts necessary to formulate cause of action. There is distinction between material facts and particulars. Function of particulars is to present a fuller picture in detail. (Refer, Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, Reports do not form part of cause of action. They are evidences or particulars. These may be relied upon or rejected and will be examined along with other evidence while deciding and determining the question, whether plaintiff was in possession when Suit No. 300/1997 was filed. Prayer of the plaintiff in Suit No. 300/1997 can be granted inspite of the said reports, if the court is satisfied. Payer ''c'' in the present suit is to ignore the said reports and the said reports do not affect the right, title and interest of the plaintiff in the property. Reports therefore or prayer ''c'' does not change the cause of action. Reports of patwari, DCP and SDM are of May, 1997 whereas suit No. 300/1997 before Addl. District judge was filed in the end of June, 1997.

It is, therefore, clear that the two suits are based upon the same cause of action.

Question No. 2

Whether the plaintiff can maintain and file this second suit on the same cause of action, when his first suit No. 300/1997 is still pending?

A plaint can be rejected under Order VII, Rule 11(d) of the Code where a suit appears from the statement in the plaint to be barred by law. Section 9 of the Code states courts have jurisdiction to try civil cases unless their cognizance is expressly or impliedly barred.

Section 12 of the Code stipulates that where a plaintiff is precluded by the 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 the Code applies. Can a plaintiff file two or more suits on the same cause of action before different courts or the second suit will be barred under the Rules in view of Section 12 of the Code requires examination.

Order II, Rules 1 of the Code states that every suit should be framed so as to afford final decision upon the subject and prevent further litigation. Order II, Rule 2 of the Code, bars a party from filing another suit on the same cause of action. Order XXIII, Rule 1(3) and (4) of the Code stipulates that a party cannot institute a fresh suit in respect of the subject matter after withdrawing an earlier suit unless liberty to file a fresh suit is granted. Similarly, Order IX, Rule 9 of the Code bars a fresh suit if an earlier suit is dismissed under Order IX, Rule 8 of the Code. Section 10 of the Code prohibits trial of a suit when an earlier suit is already pending and the subject matter in issue in the two suits is directly and substantially similar. Section 10 of the Code applies when the second or the subsequent suit is maintainable and not barred. If the second suit is barred, Section 12 or Section 9 of the Code will apply. Section 10 of the Code cannot be used to resurrect the second suit, which is otherwise not maintainable. Section 10 is not an enabling provision but a provision which bars trial. Section 11 of the Code prohibits not only trial but trial of the issue itself is barred, irrespective of the burden of proof. Provisions of Section 11 of the Code bars not only ground of attack but also defenses.

On a conjoint reading of the above provisions, considering the purpose and object behind the provisions and the entire Code, it is apparent that a party cannot file multiple or a new suit on the same cause of action, after having invoked jurisdiction of one court on the said cause of action. plaintiff after filing a suit on the subject cause must proceed with the said suit to its logical end and cannot and should not be permitted to file a new suit on the same cause of action, ignoring the first suit. The underlying principle behind the Code being that no party should be vexed twice, made to spend money and time on a second litigation, when an earlier litigation on the same cause of action filed by the same plaintiff is already pending. In addition, court''s time is spent and dockets increase, if a party files two or more suits on the same cause of action. A litigant cannot be permitted to file a new suit by substituting or changing words or paragraphs or using different language in the relief clause or by creating artificial differences or changes by incorporating more facts or particulars, though essentially and in substance the cause is the same.

In Hari Ram Vs. Lichmaniya and Others, , after examining the relevant provisions of the Code, learned Single Judge has observed:

The sum and substance of the above discussion is that a party may file a suit in the Court of law on accrual of cause of action and it is one suit only. Thereafter, his suit is required to be dealt with by the Court in accordance with the procedure providing for dealing with the suit and the plaintiff cannot have any liberty to deal with his suit as per his own whims. The CPC prescribes complete procedure about how the suit can be dealt with by the parties and the Courts. Rule 1 of Order 2 cast a duty upon the plaintiff to frame the suit in such a manner so that final decision may be given by the Court UPON the SUBJECTS in DISPUTE (not only upon cause of action or relief claimed in the suit) and it should prevent further litigation. In Rule 2 of Order 2. "Subjects in Dispute" has been used, which is wider than the words "cause of action" or "reliefs." Object of Rule 1 of Order 2 is to Prevent further Litigation between the Parties to the suit. The Sub-rules (2) and (3) of the Rule 2 of Order 2, C.P.C. do not permit plaintiff to left out any of the relief, which he could have claimed on accrual of the cause of action and if plaintiff omits to sue in respect of any portion of his claim, he is precluded from bringing second suit. Once the suit is filed by the plaintiff, the plaintiff is prohibited from amending the pleadings in any manner without leave of the Court under Order 6, Rule 17. C.P.C. Suit filed in the Court can be withdrawn by the plaintiff unconditionally under Order 23, Rule 1, C.P.C. which precludes plaintiff from instituting any fresh suit in respect of such subject-matter or such part of the claim which is included in the suit. In case, plaintiff proceeds with the suit, it can be either decreed or dismissed after trial by determination of all the issues involved with action determining the entitlement of the plaintiff and defendant in relation to the reliefs claimed in the suit. Dismissal of the suit may be for various other reasons like, dismissal for non-compliance of Court''s order or dismissal in default or due to abatement etc., as the case may be. The CPC itself provides when fresh suit can be filed even after dismissal of suit. Order 23, C.P.C. not only contains such provision permitting plaintiff to withdraw the suit without leave of Court but also keep his rights alive. Contrary it puts a specific bar against filing fresh suit. Therefore, once a suit is filed and un-conditionally withdrawn by the plaintiff, his claims, which he could have claimed but not claimed, stands relinquished as lost claim and loses his all rights, for the claim for which suit was filed resulting into, and of dispute relating to the SUBJECT of DISPUTE between the parties to the suit without leaving, any scope of second suit for subject-matter which was involved in the suit.

Generally help of Section 10 of the C.P.C. is taken in support of plea of maintainability of two or more suits by one plaintiff. Section 10 of the C.P.C. is not the permissive provisions, but is a restrictive provision and cannot be interpreted to hold that since only proceeding with the trial of issue or suit is restricted by Section 10, C.P.C., therefore, it impliedly accepts maintainability of more than one suit by one plaintiff. Said plea is devoid of any force. Section 10, C.P.C. applies only to those suits which are legally maintainable. Section 10 cannot be invoked to make the subsequently filed suit maintainable. Other view will be just contrary to entire scheme of the procedure provided for trial of suits in Civil Procedure Code. All relevant provisions of CPC are aimed towards avoiding more suits than one suit by the plaintiff, which also prohibits plaintiff from even amending suit without leave of the Court. Despite all provisions to avoid more than one suit some unavoidable circumstances permits involvement of same issues in two suits. Those suits are like cross suits or where law permits second suit specifically like withdrawal of suit with permission to file fresh suit or due to accrual of cause of action or entitlement for the relief/ reliefs subsequent to filing of earlier suit to the plaintiff and plaintiff had no right to claim relief at the time of filing of earlier suit and where Court either cannot grant relief after taking note of subsequent event or the Court refuses to entertain subsequent event for moulding the relief. Such suits are maintainable and are permissible. Even where such suits are lawfully maintainable still law, (under) Section 10 prohibits simultaneous trial of issue and if, due to any reason, trial of suit proceeded, the decision given on issue which is earlier in time has been made final by Section 11, C.P.C. When specific provisions of law prohibits trial of even maintainable suit., then interpreting Sections 10 and 11 of the C.P.C. as a permissive provision making maintainable two suits simultaneously will be against the legislative intention.

It is immaterial whether plaintiff files another suit with respect to the subject-matter against the same party during the pendency of his earlier suit or after withdrawal of the earlier suit without leave of the Court to file fresh suit, consequence is the same and i.e., abandonment of his CLAIM with statutory restriction against second suit as provided in Sub-rule (4) of Rule 1 of Order 23, C.P.C. Even if, the principles of res judicata cannot be applied still the plaintiff cannot have any permission to walk in Court and go out of the Court after inflicting injury upon the defendant and even upon the Court of dragging in litigation and wasting precious time without haying any consequence of coming into the Court and compelling other party to face the litigation may it be for long period or for shortest period. The complete scheme of the CPC makes it unambiguously clear that a party can have one opportunity to approach the Court for getting decision on all the issues raised and on all the issues which could have been raised by the plaintiff at the time of filing suit by the plaintiff and further even on the issues which arise on the pleas of the defendant taken in defence to destroy plaintiffs claim by establishing hollowness of the plaintiffs claim or by establishing his right, title or interest in the subject-matter necessary to destroy plaintiffs claim. If the plaintiff withdraws from the suit, he is at liberty to do so only with consequence of losing all his claims with respect to the subject-matter of the suit. Once defendant is invited by the plaintiff and who is contesting the suit, not agreeing to satisfy the plaintiff for his claim and reliefs expressly in terms of Sub-rule (3) of Rule 1 of Order 23, C.P.C. to the satisfaction of the Court, the plaintiff unilaterally cannot walk out of the Court by saying that he himself feels satisfied about his claim and reliefs for which defendant never conceded and plaintiff cannot take away right of the defendant to get the decision on the issues involved in the suit on the basis of the pleading of both the parties to the suit irrespective of the burden of proving the issues. It is true that neither the plaintiff nor the defendant can be compelled to litigate, but after filing suit any of them may not contest or can withdraw from contest but only with by conceding other''s claim or withdrawal of his claim for ever. Litigant after start of litigation cannot avoid its lawful and final decision nor have right to prevent Court from deciding the dispute as it is not convenient to them at this point of time and to keep the dispute alive for adjudication by the Court at the time which suits them or suits them by changing their capacity, plaintiff to defendant or vice versa. The proposition is in consonance with number of provisions of the Civil Procedure Code, which are enacted to avoid multiplicity of the proceedings by the parties in the Court.

I respectfully agree with the said observations.

Learned Counsel for the plaintiff had submitted that the suit for injunction (Suit No. 300/1997) filed before the District Judge is not maintainable and suffers from a defect as no prayer for declaration of title is made. He relied upon Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, In the said case, the Supreme Court had examined, when a suit for permanent injunction simplicitor is maintainable and when and in which cases it is necessary to file a suit for declaration and/or possession and injunction as a consequential relief. The Supreme Court noticed that in a given case, the plaintiff may amend the suit to satisfy technical requirements of law with a prayer for declaration. Further, if a suit is dismissed for a technical defect, a new suit may be filed if permitted and allowed by law. The said decision does not deal with the question of law arising in the present case, i.e. whether a plaintiff can file two suits on the same cause of action and whether the second suit is barred under the provisions of the Code.

The first suit filed by the plaintiff herein before the District Judge is still pending. plaintiff has not withdrawn the said suit under Order XXIII, Rule 1 of the Code with liberty to file a fresh suit. plaintiff herein does not want to withdraw the said suit. There is no adjudication or decision by the Additional District Judge that the first suit filed by the plaintiff is not maintainable or requires amendment. This Court while examining whether the second suit is maintainable cannot decide the question and pass an order in the first suit holding that the same suffers from a technical defect and therefore should be dismissed as withdrawn under Order XXIII, Rule 1 of the Code with liberty to file a fresh suit. No such prayer is made nor any such prayer can be entertained in the present suit. It may be noted that the plaintiff is not inclined to withdraw the first suit. Further even if there is a technical defect, the plaintiff herein can always amend the plaint. plaintiff, however, cannot file a second suit, ignoring provisions of Code and embroil the defendant No. 1 in a second litigation. The plaintiff does not have permission to file a second suit. If the plea of the plaintiff is accepted, a plaintiff can keep on filing repeated suits by making averments in the plaint that the earlier suit suffers from a technical defect but he need not withdraw the earlier suit. In the plaint filed in the present suit there is no averment that the suit filed before the District Judge is not maintainable due to a technical defect and therefore the plaintiff is filing the present suit with the intention and desire to withdraw the first suit pending before the learned Additional District Judge.

The present Suit should not be allowed to continue as it amounts to abuse of the process of court. It should be disposed of at this stage itself, lest it creates further complications or conflicting decisions and further time and costs are incurred. The present suit is mere duplication of Suit No. 300/1997 filed. Both suits, the present Suit and the suit pending before the District Court being Suit No. 300/1997 is filed by the same person, i.e. the plaintiff himself. Provisions of Order II, Rules 1 and 2 read with Sections 9 and 12 of the Code are therefore clearly applicable and the present suit is barred under the said provisions. The plaintiff cannot be permitted and allowed to file multiple litigations on the same cause of action. This amounts to sheer abuse of the process of court and harassment of defendant No. 1 who has been dragged to this Court and made to incur expenses.

Issue No. 2 is accordingly decided in favour of defendant No. 1 and against the plaintiff. The suit is not maintainable and the plaint is rejected with costs.