Sumer Chand vs Fateh Chand and Others

Shamsher Bahadur, J.—This petition for revision by Sumer Chand is directed against the order of the Subordinate Judge 1st Class, Delhi striking his name from the array of plaintiffs in the suit filed by him and four others against the first respondent Fateh Chand.

A suit was filed by the petitioner as plaintiff No. 2 and four others, Messrs. Munshi Lal Parkash Chand, Parkash Chand, Santosh Chand and Shrimati Chanderwati for perpetual injunction seeking to restrain the defendant from raising any wall or construction in the courtyard shown in the plan annexed with the plaint. The petitioner Sumer Chand is a brother of the other co-plaintiffs'' Parkash Chand and Santosh Chand and the fifth plaintiff Chanderwati is his mother. The first plaintiff is the firm of Munshi Lal Parkash Chand, Munshi Lal being the father of the petitioner. All the plaintiff''s are in occupation as tenants of the demised premises which forms the major portion of a building bearing municipal No. 236-67, Chhata Shah Ji, Chawri Bazar, Delhi, since 1935. It was asserted in the plaint that the passage which the defendant-landlord was seeking to obstruct by a construction has been used by them for ingress and egress for the demised premises. The defendant acquired this building by purchase on 1st of April, 1961, and according to the averment in the plaint has been threatening the tenant-plaintiffs since then to construct an unauthorised wall which would obstruct the plaintiff''s passage.

Inter alia, the suit was resisted on the ground that it was barred by the provisions of section 11 and Order 23, rule 1 of the Code of Civil Procedure.

While the trial Judge rejected the plea of the defendant so far as the question of res judicata is concerned, it has been found by the learned Judge that the suit so far as the petitioner Sumer Chand is concerned, is barred under the provisions of Order 23, rule 1 of the Code of Civil Procedure. As the learned counsel for the respondent seeks to justify the impugned order of the trial Judge also on the ground that the plea of res judicata is sustainable, I might deal with this point first. In a previous suit instituted by Sumer Chand and five others against the defendant Fateh Chand relating to the same subject-matter, an order was passed by the Subordinate Judge, Delhi, Shri R.C. Jain, on 18th of February, 1963, to this effect :

As this Court and the Appellate Court has held in this suit that the plaint is meaning-less and vague, therefore, a formal defect has come and it is difficult for the present suit to proceed. As per statement of the counsel for the plaintiff this suit is dismissed with cost. Plaintiff is permitted, if need be, to bring a fresh suit on this cause of action....

Plainly, the decision of the suit was not on merits and the bar of res judicata will not matter as the matter has not been "finally decided" by any Court.

With regard to the objection under Order 23, rule 1 of the Code of Civil Procedure, it is important to bear in mind that the present suit was instituted on 6th of February, 1963, while the previous one was allowed to be withdrawn on 18th of February, 1963. Mr. Yogeshwar Dayal, for the defendant-respondent, points out that a fresh suit not having been filed after the order was passed on lath of February, 1963, the condition imposed for the withdrawal has not been complied with. The question raised in this petition, however, is a different one. It is argued on behalf of the petitioner that whereas in the previous suit he asserted his independent right the present one relates to his right along with the other members of the joint Hindu family. It is also submitted that the present suit was already pending when the previous one was withdrawn. Order 23, rule 1 permits a plaintiff as against all or any of the defendants to withdraw his suit or abandon part of his claim and if the Court is satisfied that a suit must fail by reason of some formal defect, it may grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit. I do not see how it can be said that the plaintiff has failed to comply with the conditions imposed by the order. The present suit has been filed by a different set of parties though the substantial relief is the same as was claimed in the previous one by plaintiffs which included the second petitioner. It appears that all the tenants of the demised premises (the plaintiffs in the present suit being some of them) are seeking to prevent the landlord from obstructing the passage. The status of the petitioner in this suit as asserted by his learned counsel, is separate and distinguishable from the one in which he instituted the previous suit along with others. In a similar situation, it was held by Bhide, J in AIR 1928 710 (Lahore) that the second suit is not hit by the provisions of Order 23, rule 1. In that case, A brought a suit against B and C, claiming that a certain property was his private property. During the pendency of the suit, A brought another suit for injunction directing B to close certain doors in the property of the first suit. Subsequently the first suit was withdrawn. It was contended that the second suit was barred under Order 23, rule 1. It was held by the learned Judge that the second suit was not barred by the withdrawal of the previous one as the conditions of Order 23, rule 1 were not fully satisfied. Bhide J. also held that the suit was not barred under the provisions of section 11 of the CPC as the basic principle of res judicata is that there should have been a final adjudication on merits. The case of withdrawal is analogous to a dismissal in default and as there is no decision on merits there can be no res judicata. I am in respectful agreement with the propositions of law laid down by Bhide J. and I will content myself by saying that the principle, so far as the matter of res judicata is concerned, has been recently affirmed in a Division Bench authority of the Calcutta High Court in Bishwanath Kundu Vs. Sm. Subala Dassi, where it was held by Mookerjee and Amaresh Roy JJ. that a dismissal for default of an objection u/s 47, which involves no decision on the merits, either expressly or impliedly, cannot be held to bar a subsequent objection, either similar or different. At best the previous order can be regarded as an order dismissing the suit in default. That cannot possibly operate as res judicata.

I would accordingly allow this petition and set aside the order of the trial Judge. The petitioner will continue to remain a plaintiff in the suit which the trial Judge will now proceed with in accordance with law. There would be no order as to costs of this petition.