Himachal Pradesh High Court
Sh. Krishan Kumar vs Smt. Kalawati And Another on 2 March, 2022
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 2nd DAY OF MARCH, 2022
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
REGULAR SECOND APPEAL No. 309 of 2017
Between:
1. SH. KRISHAN KUMAR,
2. SH. JAG MOHAN, BOTH SONS OF LATE
SH. NARAIN DASS, VILLAGE KHARAPATHAR,
P.O. DEEM, TEHSIL JUBBAL, DISTRICT
SHIMLA, H.P.
....APPELLANTS
(BY MR.
TEK CHAND SHARMA,
ADVOCATE)
AND
1. SMT. KALAWATI WIFE OF
LATE SH. RAJINDER SINGH,
R/O VILLAGE GURNU(
KHARAPATHAR), P.O.
DEEM, TEHSIL JUBBAL AND
DISTRICT SHIMLA, H.P.
2. SH. DEVINDER SON OF SH.
ROSHAN LAL, R/O MANAN
( KHARAPATHAR), P.O.
DEEM, TEHSIL JUBBAL AND
DISTRICT SHIMLA, H.P.
3. UMA DEVI WIFE OF SH.
HANS RAJ, R/O VILLAGE,
BEJOHA, TEHSIL KOT-
KHAI, DISTRICT SHIMLA,
HIMACHAL PRADESH.
4. SMT. ASHA DEVI WIFE OF
SH. MEHAR SINGH, R/O
VILLAGE BEJOHA, TEHSIL
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2
KOT-KHAI, DISTRICT
SHIMLA, H.P.
5. SMT. PRAKASHI WIFE OF
.
SH. ISHWAR SINGH, R/O
VILLAGE JHAGTAN, TEHSIL
JUBBAL, DISTRICT SHIMLA,
H.P.
6. SH. KUSHAL SINGH SON OF
SH. RAMA NAND, R/O
VILLAGE MAND DHAR
(KHARAPATHAR) P.O.DEEM,
TEHSIL JUBBAL AND
DISTRICT SHIMLA, H.P.
7. SMT. RAMPATI WIFE OF
LATE SH. RAMA NAND, R/O
MAND
r DHAR(
KHARAPATHAR) P.O. DEEM
TEHSIL JUBBAL AND
DISTRICT SHIMLA, H.P.
.... RESPONDENTS-DEFENDANTS.
8. SMT. KRISHNA DEVI WIFE
OF SH. GULAB SINGH R/O
VILLAGE GANGAPUR, P.O.
SHEEL, TEHSIL ROHRU,
DISTRICT SHIMLA, H.P.
9. SMT. SARLA W/O SH.
TAMINDER JEET, R/O
VILLAGE KHARAPATHAR,
P.O. DEEM, TEHSIL JUBBAL
AND DISTRICT SHIMLA,
H.P.
10. SMT. DROPTI WIFE OF SH.
GURDEEP R/O VILLAGE
AND P.O. PIPRIA, TEHSIL
PIPRIA, DISTRICT
HOSHANGABAD,
M.P.(DELETED).
11. SMT. CHANDER KANTA W/O
SH. CHARANJEET SINGH,
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R/O PARUNGIA, P.O.
MULAMPUR, TEHSIL AND
DISTRICT ROPAR
(PUNJAB)(DELETED).
.
PROFORMA-RESPONDENTS/PROFORMA DEFENDANTS.
(BY ROMESH VERMA, ADVOCATE)
Whether approved for reporting? yes.
This Appeal coming on for admission this day, the Court passed the
following:
JUDGMENT
By way of instant appeal filed under Section 100 of CPC,
challenge has been laid to judgment and decree dated 13.4.2017,
passed by Additional District Judge-1, Shimla (camp at Rohru),
District Shimla, H.P., in Civil Appeal No. 8-R/13 of 2016, affirming the
judgment and decree dated 23.9.2014, passed by learned Civil Judge
(Junior Division) Jubbal, District Shimla, H.P., in Civil Suit No.20-I of
2018, titled Sh. Krishan Kumar versus Smt. Kalawati and another,
whereby suit for declaration and injunction having been filed by the
appellants-plaintiffs(hereinafter referred to as the plaintiffs), came to
be dismissed on the ground of maintainability as well as on the point
that the plaintiffs have failed to prove their adverse possession.
2. Precisely, the facts of the case as emerge from the record
are that the plaintiffs filed a suit for declaration and injunction
against the respondents-defendants (hereinafter referred to as the
defendants) in respect of land comprised in Khata No.46/45, Khatauni
No.65, Khasra Nos. 12, 13 and 14, area measuring 00-93-96 hectares,
situate at Chak Kharapathar, Tehsil Jubbal, District Shimla, H.P., as per
jamabandi for the year 2002-03 ( hereinafter referred to as the suit
.
land). Plaintiffs claimed that the suit land is in joint ownership of the
parties, but in the column of possession, they have been shown in
exclusive possession and as such, defendants have no legal right,
title and interest upon the suit land as it has been coming in their
peaceful possession.
3. Aforesaid claim put forth by the plaintiffs came to be
resisted/ refuted by the defendants, who in their written statement
specifically took objection with regard to maintainability of the suit.
Defendants claimed before the court below that prior to filing of suit
at hand, plaintiffs and proforma-defendants filed civil suit No.39-1-
2007 on the same and similar cause of action and same was
dismissed as withdrawn on 3.5.2007. Apart from above, defendants
also contested the suit of the plaintiffs on merits claiming therein that
in partition proceedings, Khasra No.2102/47/1, measuring 8 bighas
13 biswas and Khasra No.2102/47/1, measuring 4 bighas was
allotted to Mohan Lal and others, who was father of the replying
defendants and mutation was attested on 13.12.1979.
4. Learned trial Court on the basis of the pleadings adduced
on record by the respective parties framed following issues:-
1. Whether the plaintiff alongwith proforma
defendants No. 6 to 9 are absolute owners in
possession of suit land, as claimed?.OPP.
2. Whether the entry showing defendants No.1 to 5
as co-owners of suit land are wrong, illegal and
void and they have no legal right, title or interest
upon the suit land, as alleged? OPP.
.
3. Whether plaintiff is entitled for permanent
prohibitory injunction restraining defendants No.
1 to 5 from alienating, creating any charge and
interfering in the possession of plaintiff in any
manner whatsoever, if so, as to what
result?.OPP.
4. Whether suit of plaintiff is barred by principle of
res-judicata? OPD.
5. Whether the suit is not maintainable and liable
to be rejected? OPD.
6. Whether the suit of plaintiff is hit by Order 2 Rule
2 of CPC, as alleged? OPD.
7. Whether plaintiff is estopped to file present suit
by his acts, deeds, omissions, commissions,
latches, as alleged? OPD.
8. Whether the suit has not been properly valued
for the purposes of court fee and jurisdiction?
OPD.
9. Whether plaintiff has no locus-standi to file the
present suit? OPD.
10. Whether plaintiff has no cause of action to file
present suit? OPD.
11. Whether plaintiff has concealed material facts
from the court and suit is bad for want of better
particulars? OPD.
12. Whether suit of plaintiff is bad for non-joinder
and mis-joinder of necessary parties? OPD.
13. Relief:-
5. Subsequently, vide judgment dated 23.9.2014, learned
court below on the basis of the pleadings adduced on record by the
.
respective parties, held the suit of the plaintiff to be not maintainable
in terms of the provisions contained under Order 23 Rule 1(4)(b) CPC
and on the ground that the plaintiffs have not been able to prove
their adverse possession over the suit land.
6. Being aggrieved and dissatisfied with the aforesaid
judgment passed by learned trial Court, plaintiffs filed appeal in the
court of learned Additional District Judge-1 (camp at Rohru) District
Shimla, H.P., which also came to be dismissed vide judgment and
decree dated 13.4.2017. In the aforesaid background, plaintiffs have
approached this Court in the instant proceedings, praying therein to
decree their suit after setting aside the impugned judgments and
decrees passed by learned courts below.
7. Today, afore appeal was taken up for admission, but after
having perused the record of the courts below, this Court finds that
prior to filing of the suit at hand, plaintiffs herein filed suit bearing
No.39-1-2007 against the defendants on the same and similar cause
of action, but before same could be decided on its own merit,
plaintiffs filed an application under order 23 Rule 3 CPC, seeking
therein permission to withdraw the suit with liberty to file fresh. On
the basis of the statement made by counsel representing the
plaintiffs in those proceedings, earlier suit was dismissed as
withdrawn on 30.5.2008. Court while permitting the plaintiffs to
withdraw the suit did not reserve any liberty, but yet plaintiffs filed
.
fresh suit, which is subject matter of the instant appeal. Learned trial
Court dismissed the suit on the ground that at the time of passing
order dated 3.5.2008 passed in civil suit No.39-1-2007, Court had not
reserved any liberty to the plaintiffs to file fresh suit and as such,
subsequent suit on the same and similar cause of action, is not
maintainable. Though, aforesaid findings were laid challenge in
appeal by the plaintiffs before learned Additional District Judge-1,
(Camp at Rohru) District Shimla, H.P, but same was dismissed.
8. Impugned judgments and decrees passed by courts
below further reveal that courts below besides dismissing the case of
the plaintiffs on the ground of maintainability, also ruled that
plaintiffs had not been able to prove their adverse possession.
9. Mr. Tek Chand Sharma, learned counsel for the plaintiffs
while making this court to peruse the application filed under Order 23
Rule 3 CPC, vehemently argued that when there was specific prayer
made in the application for withdrawal of the suit with liberty to file
fresh and statement of counsel to that effect was recorded, court
below ought to have dismissed the suit with liberty to file fresh. Mr.
Sharma, further argued that otherwise also, there was no specific
requirement, if any, for learned counsel for the plaintiffs to ask for
liberty, especially when such prayer was made in written by way of
an application filed under order 23 rule 3(1) CPC.
.
10. Though, after having perused the application filed under
Order 23 Rule 3(1) CPC and statement of counsel representing the
plaintiffs recorded by the court below before passing order dated
3.5.2008, this Court finds that specific prayer was made in the
application for withdrawal of the suit with liberty to file fresh, but fact
remains that such plea never came to be recorded in order dated
3.5.2008, whereby earlier suit of the plaintiffs was dismissed as
withdrawn. Since Court below while passing order dated 3.5.2008 did
not mention specifically with regard to liberty reserved to the
plaintiffs to file suit, subsequent suit on the same and similar cause
of action filed by the plaintiffs rightly came to be dismissed being not
maintainable by the courts below. Once court below had failed to
record prayer with regard to liberty to file fresh in an order dated
3.5.2008, plaintiffs ought to have filed appropriate proceedings
before that court only, praying therein for modification/review of the
order. But once plaintiffs failed to do so and filed fresh suit on the
same and similar cause of action, no illegality can be said to have
been committed by the court below while passing impugned
judgment, whereby suit having been filed by the plaintiff came to be
dismissed being not maintainable in terms of order 23 Rule 1(4)(b)
CPC, which reads as under:-
"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 his 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.
(2). An application for leave under the proviso to sub-rule (1)
shall be accompanied by an affidavit of the next friend and
also, if the minor or such other person is represented by a
pleader, by a certificate of the pleader to the effect that the
abandonment proposed is, in his opinion, for the benefit of
the minor or such other person.
(3) Where the Court is satisfied:-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff
to institute a fresh suit for the subject matter of a suit or part
of a claim,
If may on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect of the
subject matter of such suit or such part of the claim.
(4) Where the plaintiff:-
(a) abandons any suit or part of claim under sub-rule (1),
or
(b) withdraws from a suit or part of a claim without the
permission referred to in sub rule (3),
he shall be liable for such costs as the court may award ad
shall be precluded from instituting any fresh suit in respect of
such subject-matter or such part of the claim."
11. Careful perusal of Order 23 Rule 1(4)(b)CPC, clearly
reveals that where the plaintiff withdraws from a suit or part of a
claim without the permission referred to in sub-rule (3), he shall be
precluded from instituting any fresh suit in respect of such subject
matter or such part of the claim. It is not in dispute that subsequent
suit having been filed by the plaintiffs is on the same and similar
cause of action, on which earlier suit was dismissed.
.
12. Consequently, in view of the above, this Court finds no
question of law muchless substantial required to be adjudicated in
the instant proceedings and as such, present appeal fails and is
dismissed accordingly. Needless to say, appellants-plaintiffs are
always at liberty to file appropriate proceedings in appropriate court
of law. Pending applications, if any, also stand disposed of.
2nd March, 2022 (Sandeep Sharma),
(shankar)
r Judges
