Delhi High Court
Shri Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr on 13 August, 2010
Author: S.Ravindra Bhat
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13.08.2010
+ CS(OS) 700/2008
SHRI ROHIT SHEKHAR ..... Plaintiff
Through : Sh. Sudhir Nandrajog, Sr. Advocate with Sh. S.
Santhanan, Sh. Kirtiman Singh, Sh. T. Singhdev and Ms. Pia
Singh, Advocates.
versus
SHRI NARAYAN DUTT TIWARI & ANR. ..... Defendants
Through : Sh. Rajeev Nayyar, Sr. Advocate with Sh. B.B. Gupta,
Sh. Atul Sharma, Sh. Abhishek Agarwal, Sh. Jaspreet Singh, Sh.
Nitesh Jain and Sh. Abhishek Misra, Advocates, for Defendant
No.1.
Sh. Sachin Midha, Advocate, for Defendant No.2.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT, J. (OPEN COURT)
%
I.A. No. 7125/2010
1. The first defendant applies to this Court under Order 23 Rules 1 (3) and (4) Code of Civil
Procedure (CPC), contending that some averments in the suit have to be deleted or struck-off. In
the suit, the plaintiff seeks a decree for declaration that he is the natural-born son of the
defendant and that the first defendant is his father. He also seeks consequential injunctive relief.
2. The controversy raised by the first defendant in the present application is that the plaintiff
had instituted a previous suit being CS (OS) 1711/2007, in which the Court had not issued
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 1
summons on account of the bar enacted under Article 361(4) of the Constitution of India; at that
time, the first defendant was the Governor of Andhra Pradesh. The Court had apparently noticed
this aspect and required the plaintiff to take corrective action. It is a matter of record - an
undisputed position by all the contesting parties that the plaintiff had, in the previous suit, moved
two amendment applications, I.A. Nos. 10860/2007 and 1660/2008. In I.A. No. 10860/2007, the
plaintiff had sought to amplify the pleadings by introducing averments, which have now found
its place in para 3(xvi) of the present suit. These are allegations to the effect that the plaintiff had
approached the first defendant on 07.12.2005 with his maternal grandmother for an appointment,
but the latter (the first defendant) avoided meeting him, i.e. the plaintiff.
3. CS (OS) 1711/2007 was withdrawn, as the plaintiff moved I.A. No. 2912/2008, who
sought further opportunity to move the Court, to institute separate proceedings. The order
disposing of the suit dated 24.03.2008, is in the following terms:
"XXXXXX XXXXXX XXXXXX
CS (OS) 1711/2007
Learned counsel for the plaintiff submits that the plaintiff seeks to
withdraw this suit because the suit suffers from technical defects, with liberty to
file fresh suit.
In view of these submissions, the suit is hereby dismissed as withdrawn
with liberty as prayed for.
Registry is directed to return all the documents to the plaintiff.
XXXXXX XXXXXX XXXXXX"
.
It is to be observed here that at that stage, the pending applications, being I.A. Nos.
10860/2007 and 1660/2008 (seeking amendment of the older suit) had not been allowed and
were pending consideration of the Court.
4. In this background of circumstances, the plaintiff filed the present suit, claiming the
reliefs that he does, on 11.04.2008. The suit was first listed on 23.04.2008 and thereafter on
28.04.2008. The Court called for records in the previous suit, CS (OS) 1711/2007 and after
considering the same, issued summons in this case. The Court had apparently directed the first
defendant to appear in person; that order was carried in appeal, and the appeal was disposed of
by the Division Bench in FAO 477/2008. The defendant thereafter entered appearance and
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 2
contested the suit. An application, I.A. No. 9474/2008, urging that the suit was time-barred, was
moved by the defendant. Initially, it found favor in the Court; the Single Judge rejected the suit
as time-barred on 03.11.2009. In addition to holding that the suit was time-barred, the Court also
held that it did not possess territorial jurisdiction to entertain and try the claim. The judgment
was carried in appeal. In this round, the Division Bench again set-aside the determination of the
Single Judge and directed that the matter may be proceeded with on merits. The order of the
Division Bench was contested in appeal by Special Leave before the Supreme Court, which on
10.05.2010 remitted the entire matter for fresh consideration on merits by this Court, uninhibited
by the observations made either by the Single Judge or the Division Bench.
5. The applicant/first defendant urges that the introduction of para 3(xvi) is impermissible,
having regard to the mandate of Order 23 Rule 1(4) as the subject matter, i.e. the allegations
regarding meetings said to have taken place between the plaintiffs and the first defendant in 2005
had not found place in the previous suit. It is submitted in this context that the expressions
"claim" and "subject-matter", which find mention in Order 23 Rule 1(4) would comprehend the
facts - either pleaded or omitted. In the previous suit, CS (OS) 1711/2007, the plaintiff had not
pleaded or urged what he seeks today in the present suit, i.e. the allegation contained in para
3(xvi). If the Court were not to enforce the mandate of Order 23 Rule 1(4) and hold that the said
pleading was not to be stricken-off, grave prejudice would be caused to the applicant/defendant,
as a proper decision on the issue of limitation would be radically altered.
6. In support of the contention, the applicant relies upon the decision of the Lahore High
Court in Shadi Ram v. Amin Chand and Ors. AIR 1930 Lah 937 and also the judgment of the
Supreme Court in Vallabh Das v. Madan Lal and Ors. AIR 1970 SC 987. The applicant's senior
counsel emphasizes on the following passage in Shadi Ram (supra):
".....The plaintiffs would no doubt, be precluded from instituting a fresh suit in
respect of the subject-matter of the previous suit but "subject-matter" has been
interpreted by authority to be equivalent to the phrase "cause of action,".........
7. It is contended by the applicant/defendant that not having secured the benefit of an order
on the claim for amendment, and sought withdrawal of the suit as it existed, the plaintiff cannot
now improve his case to his detriment (i.e. of the defendant) as the question of limitation would
assume an altogether different character, if the suit pleadings as presented are allowed to be
maintained. On these grounds, says the applicant's learned senior counsel, the relief of striking-
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 3
off the relevant portions of the pleadings has to be granted.
8. The plaintiff submits that the question as to whether the suit is time-barred was contested
in a previous application, I.A. No. 9474/2008. It is submitted that while so, the defendant omitted
to notice the so-called lacunae, which is being pointed-out here, i.e. the so-called "unauthorized"
introduction of para 3(xvi). It is urged that having omitted to take this ground, the applicant
cannot, through the back-door, as it were, introduce the plea, which could have been and was not
urged logically as part of the application under Order 7 Rule 11, for rejection of the suit. It is also
argued that Order 6 Rule 16 CPC, which is the relevant provision authorizing the Court to strike-
off the pleadings, does not envision a situation of the present kind and that the Court should,
therefore, decline the relief.
9. The plaintiff further argues that the amendment applications for introducing pleadings
which have now formed part of para 3(xvi) were existing on the file of this Court even before the
summons were issued and since the Court was not satisfied on account of the bar contained in
Article 361 (of the Constitution), the said previous suit had to be withdrawn, with express liberty
to file the present one. It was argued significantly that the expressions "cause of action" and
"subject matter" are broader than "facts". Learned counsel emphasizes here that the terms "cause
of action" and "subject matter" would be a bundle of facts and not merely individual facts.
Therefore, it is urged that so long as the main claim and essential facts remain the same, the
litigant is permitted to amplify them by outlining detailed facts which may constitute one or
more than one cause of action. The plaintiff points-out that in answer to Para 3(xvi) of the suit,
the defendant has nowhere urged that this aspect was introduced in the present suit and that the
written statement in fact contains admissions which would enure to the plaintiff's benefit.
10. At this stage, it would be relevant to extract Order 23 Rule 1 CPC, which is in the
following terms:
"XXXXXX XXXXXX XXXXXX
[1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after,
the institution of a suit, the plaintiff may as against all or any of the defendants
abandon his suit or abandon a part of the claim:
Provided that where the plaintiff is a minor or other person to whom the
provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor
any part of the claim shall be abandoned without the leave of the Court.
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 4
XXXXXX XXXXXX XXXXXX"
11. The facts noticed above would show that the previous suit, being CS (OS) 1711/2007 hit
a road-block in the sense that the Court was unwilling to issue notice in view of the bar contained
in Article 361. Even while facing it, the plaintiff wished to amend the suit and incorporate certain
allegations. It is not in dispute that such allegation were concerned with the averments in para
3(xvi) of the present suit. For the sake of convenience, it would be necessary to extract the
averments in paras 3(xv) and 3(xvi). The previous suit has been annexed with the documents
filed by the plaintiffs on 14.07.2010. It would reveal that para 3(xv) is the same as in the present
suit. The said paras 3(xv) and 3(xvi) read as follows:
"XXXXXX XXXXXX XXXXXX
3.(xv) Thereafter, the Defendant No.1 became the Chief Minister of Uttaranchal
in the year 2002 and maybe because he was afraid that the Plaintiff might try to
cause some problem for him, he agreed to meet the Plaintiff occasionally. This
continued for a while, but thereafter, the defendant No.1 again started avoiding
the Plaintiff and absolutely refused to see him for the last number of years.
(xvi) The Plaintiff submits that after the Defendant No.1 became Chief Minister
of Uttaranchal, the Petitioner and his mother visited the Defendant No.1 number
of times and some of the photographs of the functions attended by the Plaintiff
and his mother after 2002 and upto 2005 are filed separately in the present suit. It
was on 7th December, 2005 when the Plaintiff approached Defendant No.1 with
his maternal grandmother at the airport in Delhi to seek an appointment with him
that the Defendant No.1 avoided to meet the Plaintiff. Thereafter, many attempts
have been made by the Plaintiff to contact the Defendant No. 1 but he has refused
to meet the Plaintiff.
XXXXXX XXXXXX XXXXXX"
12. As may be seen, the above averments are concerned with the dates on which the first
defendant allegedly met the plaintiff. While the previous suit mentioned that the first defendant
had assumed office as the Chief Minister of Uttaranchal in 2002 and that he was afraid that the
plaintiff might create problems and that he tried to meet him (i.e. the defendant) occasionally and
thereafter he started doing so, para 3(xvi) goes on further to mention of the photographs of the
functions in which the first defendant and the plaintiff's mother, along with him (the plaintiff)
are found. It is a matter of record that the said photographs had been filed in the previous suit,
CS (OS) 1711/2007.
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 5
13. In this Court's opinion, the applicant/first defendant's argument that the expressions
"facts", "subject matter" and "cause of action" coincide or are synonymous is misconceived.
There are several judgments of the Supreme Court [refer Kusum Ingots & Alloys Ltd. v. Union of
India and Another 2004 (6) SCC 254)], which state that the cause of action, though not defined,
signifies all those material facts ("bundle of facts") which impell a litigant to approach the Court
for relief. A careful reading of various provisions of the Civil Procedure Code (CPC) would
reveal that it distinguishes between "facts", "material facts", "evidence", "cause of action" and
"subject matter". In these circumstances, the argument that same facts, if omitted in pleadings,
would constitute omission of the entire subject matter, is unacceptable. The
applicant/defendant's reliance on Shadi Ram (supra), in this content, is of no avail. It would be
apparent that the Court, even while observing as it did in the extracted portion above, proceeded
to hold that the argument advanced in that case was untenable, and rejected it. Similarly in the
Supreme Court decision reported as Vallabh das (supra), the Court, after noticing Order 23 Rule
1 went on to hold as follows:
"XXXXXX XXXXXX XXXXXX
5. Rule 1, Order 23, CPC empowers the courts to permit a plaintiff to withdraw
from the suit brought by him with liberty to institute a fresh suit in respect of the
subject-matter of that suit on such terms as it thinks fit. The terms imposed on the
plaintiff in the previous suit was that before bringing a fresh suit on the same
cause of action, he must pay the costs of the defendants. Therefore we have to see
whether that condition governs the institution of the present suit. For deciding
that question we have to see whether the suit from which this appeal arises is in
respect of the same subject-matter that was in litigation in the previous suit. The
expression "subject-matter" is not defined in the Civil Procedure Code. It does
not mean property. That expression has a reference to a right in the property
which the plaintiff seeks to enforce. That expression includes the cause of action
and the relief claimed. Unless the cause of action and the relief claimed in the
second suit are the same as in the first suit, it cannot be said that the subject-
matter of the second suit is the same as that in the previous suit. Now coming to
the case before us in the first suit Dr. Madan Lal was seeking to enforce his right
to partition and separate possession. In the present suit he seeks to get possession
of the suit properties from a trespasser on the basis of his title. In the first suit the
cause of action was the division of status between Dr. Madan Lal and his
adoptive father and the relief claimed was the conversion of joint possession into
separate possession. In the present suit the plaintiff is seeking possession of the
suit properties from a trespasser. In the first case his cause of action arose on the
day he got separated from his family. In the present suit the cause of action,
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 6
namely, the series of transactions which formed the basis of his title to the suit
properties, arose on the death of his adoptive father and mother. It is true that
both in the previous suit as well as in the present suit the factum and validity of
adoption of Dr. Madan Lal came up for decision. But that adoption was not the
cause of action in the first nor is it the cause of action in the present suit. It was
merely an antecedent even which conferred certain rights on him. Mere identity of
some of the issues in the two suits does not bring about an identity of the subject
matter in the two suits. As observed in Rakhma Bai v. Mahadeo Narayan, I.L.R.
42 Bom. 1155 the expression "subject matter" in Order 23, Rule 1, CPC means
the series of acts or transactions alleged to exist giving rise to the relief claimed.
In other words "subject matter" means the bundle of facts which have to be
proved in order to entitle the plaintiff to the relief claimed by him. We accept as
correct the observations of Wallis C.J. in Singa Reddi v. Subba Reddi, I.L.R. 39
Mad. 987 that where the cause of action and the relief claimed in the second suit
are not the same as the cause of action and the relief claimed in the first suit, the
second suit cannot be considered to have been brought in respect of the same
subject matter as the first suit.
XXXXXX XXXXXX XXXXXX"
14. In other words, the Court held that the identity of some of the issues in the two suits will
not bring about identity of subject matter.
15. The above observations could have disposed of all the applications. However, this Court
is mindful of the fact that the present plaintiff had made an effort to introduce the portions, which
have now been introduced in the present suit as para 3(xvi) by way of an amendment application
specifically and the consequential addition in the cause of action averments in I.A. No.
10860/2007. It is undisputed that the Court has not issued summons and was concerned about
maintainability solely on account of the bar contained in Article 361. If the normal rule of
amendment of pleadings is applied, there would have been no reason for denial of the application
to include these averments, which are now being opposed by way of these applications. That the
amendments were not allowed or permitted and the suit itself was allowed to be withdrawn, with
liberty to press a fresh suit is a matter of detail which should not inhibit this Court from being
conscious about the normal rule about law of pleadings. In other words, but for the bar of Article
361, in all likelihood, the amendment sought would have been permitted, having regard to the
law pertaining to Order 6 Rule 17, CPC.
16. Undoubtedly summons had not been issued at that stage. Having regard to these facts that
the suit had to be withdrawn on account of the bar under Article 361, and later presented, in the
opinion of this Court, there is no impediment for the plaintiff to urge in what he does in the
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 7
portions objected to in his averments. Some evidence, as it were, in the form of photographs,
which include some that are alleged to have been taken in the year 2005 - were part of the record
in the previous suit.
17. An oft repeated aphorium is that procedure is only a handmaiden of justice, and not its
master. Having regard to the above discussion, the Court is satisfied that this application is
unmerited. In the circumstances, it is accordingly dismissed. The applicant is directed to pay
costs to the plaintiff, quantified at ` 75,000/-, within four weeks.
CS(OS) 700/2008, I.A. No. 4720/2008
List on 21.09.2010.
S. RAVINDRA BHAT
(JUDGE)
AUGUST 13, 2010
'ajk'
I.A. No. 7125/2010 in CS (OS) 700/2008 Page 8
