Udai Raj Yadav and Others vs Ist A.D.J. and Others

Arun Tandon, J.—Heard Sri V.K. Singh, holding brief of Sri S.N. Singh, learned counsel for the petitioners, Sri M.D. Singh Shekhar, learned counsel for the respondent Nos. 2 to 9 and Sri Piyush Shukla, learned standing counsel for the respondent No. 1.

Original Suit No. 471 of 1980 was filed by four petitioners, namely-Lal Bahadur Yadav, Bajrangi Yadav, Maheep Yadav and Shiv Nath Yadav against seven respondents, namely-Udai Raj, Brijraj Yadav, Ramratan Yadav, Ramjatan Yadav, Shivjatan Yadav, Rampujan and Harendra. The reliefs prayed for in the said suit, read as follows :

"(a) Adalat say bajariya degree hukm imtahal dwani prativadigan ko agya di jai ki ve kabja dakhal ham vadigan par zameen nijai mal uspar isthit chijon ke mana va muzahim na ho aur na uspar kisi prakar ka swatwa kayam karen aur na apney makan ka koi darwaja iss zameen par kayam karen aur na usse kisi prakar ki amdaraft karen maliyat dadarsi Moo. 200 hal kyonki maliyat ka 1/5 Moo. 200 sey kam hai.

(b) Yahki agar dauran mukadma main pratiwadigan kisi prakar ka koi nirman karney ya koi todfod karen to uss soort main bajriya hukm Imtenal prativadigan ko hukm diya jai ki andar miyad mooina dalat apne nirman ya anya karya ko hatakar zameen ko khali kar bahalat aslt kar deyen. Agar Adalat ki agya ka ullanghan karen to bajriya ahalkar adalat tamila degree basrapa prativadidaan kar diya jaye. Maliyat dadarsi haza Moo. 200 kayam ki gai hai Kyonki maliyat zameen ka 1/5 Moo. 200 sey kam hai.

(c) Yahki kisi karan say zameen nizai say vaidgan ki badkhali saabit ho to uss surat main degree dakhal bai bahak vadigan virudh prativadigan sadeer parmal javey. Dardarsi haza ka mulyankan Moo 200 malkiyat zameen va uss par isthit chijon key hain.

(d) Kool kharch mukadama zimma prativadigan ayadkiya jave.

(e) Ooprokat dadarsi hai ke alava ya bajay kisi anya dadarsi ke vadigan najdik ral adalat adhikari ho to ta pharmal numbaran 7/030,8-010,9-032, Ajruya Batvara San 1917 Isvi Babat Mauza Ghanghata, Paragana-Autrualiya, Zila, Azamgarh mai uspar isthit chijon key hain."

The said suit was dismissed in default on 21.10.1981. An application was filed for recall of the order dated 21st October, 1981

dismissing the suit, was also dismissed. Against the said order, a revision was filed, which was also dismissed. In such circumstances, the order dismissing the suit became final between the parties.

Subsequently Original Suit No. 99 of 1984 was filed by the plaintiffs of Suit No. 471 of 1980 along with one Sri Lagan Yadav, S/o Sri Daljeet Yadav against the same defendants, who were parties of Suit No. 471 of 1980. Reliefs prayed for, in the subsequent suit, read as follows :

"(a) Yah ki nyayalaya say prativadigan ke virudh adesh Ish visay ka parit kiya jave ki prativadigan ashityaya shikayti aj sic nand khuntaiat chchappar ko vivadit bhumi say akshar A.B.C.D. say nyayalaya dwara nirdharit vivad ke andar hatakar va darwaza nizai band karke zameen bahalat ashli kar deve, basurat kashir rahney tamila degree zariya ahalkar adalat prativadigan ke kharchon se kara diya jave. Tayun ish dadarshi ka vastay adhikar gunval Moo 1000 rupye va aday rasamu Moo 200 rupay hai.

(b) Yahki nayayalaya se prativadigan ke virudh asthai nishedhagyyan ish visay ki parit ki jave ki vay kabja dakhal vadigan upar vivadit bhumi va ushmey Isthit vadigan ki chijon par mana muzahim na hon, na darwaja nizai se vivadit bhumi main bamdaraft karen. Tabun is dadarshi ka dastay adhikar smapt Moo. 1000 rupaya bakdar maphit vivadit bhumi va ushmey isthit chijon ka hain tatha vastey aday rasum malkiyat ke 1/5 Moo 200 rupya hai.

(c) Yah ki yadi vivadit bhumi ke kisi aaj sey bedakhali vadigan karra paveyn to uss par dakal bhi dikhaya jave, tagun is dadarshi ka Moo 10 rupya bakdar baliyat vivadit bhumi hai.

(d) Vad ki kool kharch ginka prativadigan aayed kiya jave."

Before the trial court objection was filed on behalf of the defendants stating therein that the subsequent suit was barred by the provisions of Order IX, Rule 9 of the CPC (hereinafter referred to as the ''Code''). On the said objections, issue No. 3 was framed by the trial court. The trial court decided the issue No. 3 in favour of the defendants on 4th January, 1988 and held that the subsequent Suit No. 99 of 1984 was barred by the provisions of Order IX, Rule 9 of the Code. Against the said order of the trial court dated 4th January, 1988, the plaintiff filed a revision, being Civil Revision No. 8 of 1988. By means of the order dated 29th November, 1988, the learned 1st Additional District Judge, Azamgarh has allowed the said revision and has held that the subsequent Suit No. 99 of 1984 was not barred by the provisions of Order IX, Rule 9 of the Code.

After hearing the learned counsel for the parties and after going through the records of the writ petition, I find that there is no dispute between the parties about the facts. The revisional court had set aside the order of the trial court dated 4th January, 1988 and after recording following findings namely ; (a) that the relief prayed for in the plaint of Suit No. 471 of 1980 was different vis-a-vis the relief prayed for in the plaint of Suit No. 99 of 1984, and (b) that Sri Lagan Yadav was the party to the earlier suit proceedings.

After recording the aforesaid findings of fact the revisional court came to the conclusion that the subsequent suit was not barred by the provisions of Order IX,. Rule 9 of the Code.

The finding recorded by the revisional court with regards to the relief prayed for in two suits being different, is based on misreading of the plaint, the reliefs prayed for in two suits, quoted hereinabove. It is apparent that in first suit, being Suit No. 471 of 1980, there is a specific prayer that if constructions are raised by the defendants during the course of the suit proceedings, the same may be removed, so that the defendants do not interfere with the right of the plaintiffs in any manner. The relief prayed for in the subsequent suit was more or less the same. It was prayed that the construction may be removed and defendants be dispossessed from the suit property if they are found in possession of any part thereof. The prayer in the suits remains the same except for consequential reliefs the findings of the revisional court, that there was difference in the relief prayed for in the two suits is totally unjustified and unsustainable in the eyes of law. The relief prayed for is more or less identical.

In the circumstances, the findings recorded by the revisional court in two suits, being different, cannot be sustained and are hereby set aside. The other findings recorded by the revisional court to the effect that Sri Lagan Yadav, being not a party to the earlier suit ; provisions of Order IX, Rule 9 of the Code would not apply, is legally correct. Order IX, Rule 9 reads as follows :

"Decree against plaintiff by default bars fresh suit.-(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal, aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit.

(2) No order shall be made under this Rule unless notice of the application has been served on the opposite party.

Restoration application and sufficient cause.-Restoration of suit dismissed for default should not ordinarily be denied unless the applicant is found guilty of contumacious negligence or wilful default. Sudden illness is sufficient cause. Similarly when an appeal is dismissed for default, the appeal is generally restored to file unless the appellant suffers from gross negligence. At least a party in appeal should not suffer for the negligence of his lawyer.

No fresh Vakalatnama or power of attorney is necessary for proceedings for restoration of suit."

It is necessary that the plaintiffs in two suits must be same. The word ''plaintiff'' has been explained by the Hon''ble Supreme Court in the judgment in Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, to include the legal assignees and legal representatives. Thus, only the persons claiming through the plaintiffs as legal assignees or representatives for the purpose of Order IX, Rule 9 of the Code in the subsequent suit would be covered. From the plaint, allegations of the second Suit No. 99 of 1984, it is established that Sri Lagan Yadav had not claimed right or title on the basis of his being legal representative or legal assignee of the plaintiff of the first suit. The right claimed by Sri Lagan Yadav is based on independent right claimed by him.

In the circumstances, the provisions of Order IX, Rule 9 of the Code could not be attracted and it cannot be said that the suit, as filed by Sri Lagan Yadav, was barred by the provisions of Order IX, Rule 9.

In view of the aforesaid facts except for Sri Lagan, the other plaintiffs No. 2 to 4, namely, Sri Lal Bahadur Yadav, Sri Bajrangi Yadav, Sri Maheep Yadav and Sri Shiv Nath Yadav, who were plaintiffs in Suit No. 471 of 1980, could have not filed the subsequent Suit No. 99 of 1984 as the same is barred by the provisions of the Order IX, Rule 9 of the Code.

In such circumstances, the order passed by the revisional court dated 29th November, 1988 is set aside to the extent that the suit as filed by the plaintiffs, namely-Lal Bahadur Yadav, Sri Bajrangi Yadav, Sri Maheep Yadav and Sri Shiv Nath Yadav. is barred by the provisions of Order IX, Rule 9 of the Code. Accordingly, it is directed that the suit as filed by the aforesaid plaintiffs against the defendants stands dismissed. However, the subsequent suit will proceed only on behalf of the plaintiff, namely-Sri Lagan Yadav. Since the suit is pending before the trial court since 1984. it is directed that the said suit may be decided by the trial court in accordance with law at the earliest possible, preferably within six months from the date a certified copy of this order is produced before him. It is needless to point out that unnecessary adjournments shall not be granted by the trial court to any of the parties.

In view of the above observations, this petition is partly allowed.