Madhya Pradesh High Court
Vijay Kumar Jain vs Mukesh Kumar Jain on 31 March, 2021
Author: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Miscellaneous Appeal No.5565/2018
Vijay Kumar Jain
Vs.
Mukesh Kumar Jain & Another
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Shri Anand Chawla, learned counsel for the appellant.
Ms. Sanjana Sahni, learned counsel for the respondent No.1.
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ORDER
(31/03/2021)
This Miscellaneous Appeal under Order 43 Rule 1 (U) of the
Civil Procedure Court has been filed against the order dated 31/10/2018
passed by IVth Additional District Judge, Katni in Regular Civil
Appeal No.119/2018, whereby learned ADJ set aside the order dated
11/08/2018 passed by II Civil Judge, Class-II, Katni in Civil Suit
No.189-A/2017 whereby learned Civil Judge allowed the appellant's
(respondent of that suit) application filed under Section VII Rule 11 of
the CPC and rejected the respondent No.1/plaintiff's Civil Suit No.189-
A/2017 holding that respondent No.1 had filed Civil Suit No.270-A/08
for the same relief earlier also, which was withdrawn by the respondent
No.1/plaintiff on 20/01/2009 without the permission of Court, so the
second suit filed by the respondent No.1/plaintiff for the same relief is
not maintainable and held that suit filed by the respondent No.1 is not
maintainable.
2. Learned counsel for the appellant submitted that earlier also the
respondent No.1/plaintiff had filed Civil Suit No.270-A/08 for getting
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the vacant possession of the shop located at Cloth Market, Silver
Talkies Road, Katni and for permanent injunction and that Civil Suit
was withdrawn by the respondent/plaintiff without the permission of
the Court under Section 23 Rule 1 of the CPC. Thereafter, in the year
2017 respondent No.1/plaintiff again filed the suit for the same relief,
regarding the same property, which is not maintainable. Learned
Appellate Court without appreciating these facts wrongly set aside the
order dated 11/08/2018 passed by II Civil Judge, Class-II, Katni in
Civil Suit No.189-A/2017. In this regard learned counsel placed
reliance upon the judgment passed by Hon'ble Apex Court in the case
of Sarguja Transport Service Vs. State Transport Appellate Tribunal,
Gwalior & Other, AIR 1987 SC 88.
3. Learned counsel for the respondent No.1/plaintiff submitted that
the subject matter of the Civil Suit No.189-A/2017 filed by respondent
No.1/plaintiff is different from earlier Civil Suit filed by the respondent
No.1/plaintiff regarding the same property. So, the second Civil Suit is
maintainable and the learned Appellate Court did not commit any
mistake in holding that the second suit filed by the respondent
No.1/plaintiff for the same property is maintainable. In this regard,
learned counsel also placed reliance upon the judgment of Hon'ble
Apex Court passed in the case of Vallabh Das Vs. Dr. Madan Lal &
Others, 1970(1) SCC 761.
4. This Court has gone through the record and arguments advanced
by the learned counsel for the parties. Order 23, Rule 1(4) CPC will get
attracted only if the subject matter is one and the same. The expression
"subject-matter" is not defined in the Civil Procedure Code. Hon'ble
Apex Court in the case of Vallabh Das Vs. Dr. Madan Lal & Others,
1970(1) SCC 761 held "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
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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."
Therefore 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.
5. It is settled that at the time of deciding the application filed under
Order VII Rule 11 CPC only averments of the plaint should be seen
assuming to be correct as held by the Apex Court in the case of Saleem
Bhai and others versus State of Karnataka and others, 2013 SC 759.
In para 3 to 6 of his plaint respondent No.1/plaintiff clearly averred that
in the year 2000 appellant had requested to the respondent No.1 that the
suit shop was required by him for sometime, on which he allowed the
appellant to keep his goods in the shop for some time, but the appellant
started to manufacture furniture in the shop. On that, he filed Civil Suit
against him, but on the persuasion of the family members, community
members and the assurance of the appellant that he would not let or sell
the shop to any other person and shall give the vacant possession of the
suit shop to respondent/plaintiff whenever required, he withdrew the
earlier Civil Suit. Thereafter, the respondent No.1/plaintiff requested
the appellant to give vacant possession of the suit shop many times, but
the appellant did not do so. On the contrary appellant went upon to give
the suit shop on rent to the respondent No.2. So, respondent No.1 again
filed this suit for getting vacant possession of the shop. So from the
averment of the plaint it is apparent that the second suit is filed by the
respondent No.1/plaintiff on different cause of action, which arises
after the withdrawal of the first suit by the respondent/plaintiff. So
subject matter of the second suit is different. Hence the second suit
filed by the respondent No.1/plaintiff is maintainable.
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6. In the case of Sarguja Transport Service (Supra) as relied by the
learned counsel of the appellant, Hon'ble Apex Court only held that the
principle underlying Rule 1 of order 23 of the Code is that when a
plaint if once institutes is suit in a Court and there by avails of a remedy
given to him under law it cannot be permitted to Institute a fresh suit in
respect of the same subject matter again after abandoning the earlier
suit or by withdrawing it without the permission of the court to file
fresh suit. While in this case the second suit has been filed by the
respondent No.1/plaintiff on the different subject matter, so that
judgement does not assist the appellant.
7. In the considered opinion of this Court, Appellate Court did not
commit any mistake in rejecting the appellant's application filed under
Section VII Rule 11 of the CPC and directed the trial Court to dispose
of the case according to law.
8. Hence, petition has no force and is hereby dismissed.
(Rajeev Kumar Dubey)
JUDGE
as/
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