Allahabad High Court
Smt. Dhanwanti & Others vs State Of U.P. & Others on 15 May, 2014
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Case :- WRIT - C No. - 53381 of 2009
Petitioner :- Smt. Dhanwanti & Others
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- S.K. Dwivedi
Counsel for Respondent :- C.S.C.,A. K. Pathak
Hon'ble Pankaj Mithal,J.
The petition was called out and after hearing the counsel for the respondents it was ordered to be dismissed. Lateron Sri S.K.Dwivedi, counsel for the petitioner appeared and insisted for being heard. In the interest of justice, counsel for both the parties were reheard.
The order dated 22.10.2008 rejects the application of the petitioners (Paper No.27-Ga) whereby they have contended that the suit of the respondent No.4 (Original Suit No.255 of 2001) is not maintainable as his earlier Original Suit No.111 of 1995 to the same effect was dismissed in default.
The court of first instance rejected the above application holding that the cause of action in both the suits are distinct. The order has been affirmed in revision.
Counsel for the petitioner submits that suit is barred by order 9 Rule 9 C.P.C. as well as Order 2 Rule 2 C.P.C.
Order 9 Rule 9 precludes a person from bringing a fresh suit in respect of the same cause of action on which his earlier suit is wholly or partly dismissed for non-attendance under Rule 8 of Order 9 C.P.C.
A plain reading of Order 9 Rule 9 C.P.C. reveals that "same cause of action" plays a vital role for deciding as to whether any suit is barred. The second suit is only barred if its cause of action is the same as in the earlier suit which had been dismissed for want of prosecution.
The plaint of both the suits are part of the writ petition. I have carefully perused both of them. In plaint of Original Suit No.111 of 1995 the respondent No.4 has claimed a decree of divorce. The relief clause of the said suit is quoted below:
" 1% ;g fd isVh'kuj ds i{k esa rFkk izfri{kh 1 ds izfrdwy fookg foPNsn dh fMdzh iznku dj ns isVh'kuj & izfri{kh 1 ds fookg dks foPNsn dj+ fn;k tk;sA
2% ;g fd vyknk ctk; etdwjk okyk ns isVh'kuj ftl fdlh vU; nksxj nknjlh dk eqRrgd djkj ik;k tk;s bldh Hkh fMdzh cgd isVh'kuj cuke izfroknh 1 rkfnj Qjek;k tk;saZA
3% ;g fd [kpkZ eqdnek o odhy esgurkuk [email protected]'kuj izfroknh ls fnyok;k tk;saA"
In contrast to the relief claimed in the above suit, in the subsequent Suit No.255 of 2001 the respondent No.4 has sought a decree of declaration that his marriage with the petitioner No.1 stood dissolved and that petitioner No.2 is not his daughter and further that he is not responsible to maintain any of them. A further relief of mandatory injunction restraining the petitioner from claiming maintenance from him has also been sought. The relief clause of the above suit is as under:
Þ1 & ;g fd oknh ds i{k esa rFkk izfroknh la[;k 1 ds fo:} bLrdjkj dh fMdhz ikfjr dj ds ;g ?kksf"kr dj fn;k tk;s fd oknh o izfroknh la0 1 dk oSokfgd lEcU/k foPNsn gks pqdk gS rFkk ;g Hkh rtoht dj fn;k tk; fd izfroknh la0 2 oknh dh iq=h ugh gS rFkk ;g Hkh rtoht dj fn;k tkos fd izfroknhx.k la0 1 o 2 dks esUVsu djus dh dksbZ ftEesnkjh oknh dh ugh gSA
2 & ;g fd ikfj.kkfed nknjlh ds tfj;s fMdzh LFkk;h fu"ks/kkKk izfroknh la0 1 o 2 dks euk dj fn;k tkos fd os oknh ls Hkj.k iks"k.k dh ekax u djs u bl ds fufer dksbZ dk;Zokgh djs fd fMdzh ogd oknh f[kykQ izfroknhx.k la0 1 o 2 lkfnj Qjek;k tkos A
3 & ;g fd [kjpk eqdnek izfroknhx.k ls fnyok fn;k tkosA
4 & ;g fd vykok ;k otk; nknjlh etdqjk okyk ds vxj oknh vkSj ftl fdlh nskxj nknjlh dk eqLrgd djkj ik;k tkos rks ml dks Hkh fMdzh ogd oknh cuke izfroknhx.k lkfnj Qjek tkosAß
A bare comparison of the reliefs claimed in both the above suits establishes that the cause of action for instituting the said suits are not the same and are distinct.
In view of the above, dismissal of the first suit for want of prosecution under Order 9 Rule 8 would not bar the second suit with a different relief based upon a separate cause of action.
Order 2 Rule 2 C.P.C. provides that every suit shall include the whole of the claim which the plaintiff is entitle in respect of a particular cause of action but may relinquish any portion of it where upon he shall not be allowed to sue afterwards to claim the unclaimed or the relinquished part of it.
In applying Order 2 Rule 2 C.P.C. also the cause of action plays an important role that if the party omits to seek the relief which he is actually entitle or relinquishes a portion of it in connection with the same cause of action then he cannot bring another suit in respect of that claim omitted or relinquished.
Since the cause of action in two suits happen to be different, the provisions or Order 2 Rule 2 does not apply.
It is pertinent to note that the plaint of a suit is liable to be rejected under Order 7 Rule 11 C.P.C. where the suit appears from the statement in the plaint to be barred by any law. It is settled law that in deciding the application under Order 7 Rule 11 C.P.C. only the plaint allegations or the statement made in the plaint alone are to be considered and not the written statement or any other material. Therefore, even if the court proceeds treating the above application of the petitioners to be one under Order 7 Rule 11 C.P.C. it is not liable to be rejected as the statement in the plaint in no way demonstrate that the suit is barred by any law.
The argument of the petitioner that the suit is barred by Order 9 Rule 9 C.P.C. or Order 2 Rule 2 does not appear to be so barred on the simple reading of the plaint averments unless one falls upon the written statement or the other material on record. If for deciding the maintainability of the suit, written statement or the evidence is to be considered, then it is appropriate to frame an issue regarding the suit being so barred and permit the parties to adduce evidence on the issue instead of rejecting the plaint on a mere application. Such an exercise has not been undertaken. Therefore, the suit could not have been dismissed.
In view of the aforesaid facts and circumstances, the application of the petitioner (Paper No.27-Ga) has rightly been rejected by the courts below and the proper course open to the petitioner, if any, is to get an issue in that regard framed and decided on evidence.
The petition, therefore, lacks merit and is dismissed.
Dt:15.5.2014
Brijesh
