Amar Bahadur Singh vs Ramanugrah Shukla
2022 Latest Caselaw 6806 MP

                                                  1
                               IN THE HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                            ON THE 6th OF MAY, 2022

                                       CIVIL REVISION No. 197 of 2020

                           Between:-
                      1.   AMAR BAHADUR SINGH, S/O SHRI RAVIDATT
                           SINGH, AGED ABOUT 65 YEARS, OCCUPATION:
                           AGRICULTURIST R/O VILL. DAINIHA TEH.
                           GOADBANAS DIST. SIDHI (M.P.)

                      2.   ANIL SINGH S/O AMAR BAHADUR SINGH, AGED
                           ABOUT 45 YEARS, OCCUPATION: AGRICULTURE
                           R/O VILLAGE DAINIHA TAHSIL GOADBANAS
                           DISTT. SIDHI (M.P.)

                      3.   ARUN SINGH, S/O SHRI AMAR BAHADUR SINGH,
                           AGED    ABOUT     40    YEARS, OCCUPATION:
                           AGRICULTURE R/O VILLAGE DAINIHA TAHSIL
                           GOADBANAS DISTT. SIDHI (M.P.)

                      4.   AJAY SINGH S/O SHRI AMAR BAHADUR SINGH,
                           AGED ABOUT 37 YEARS, R/O VILLAGE DAINIHA
                           TAHSIL GOADBANAS DISTT.SIDHI (MADHYA
                           PRADESH)

                                                                        .....PETITIONER
                           (BY SHRI SANJIV KUMAR MISHRA, ADVOCATE )

                           AND

                      1.   RAMANUGRAH     SHUKLA S/O    LATE SHRI
                           GANGARAM BRAHMAN, AGED ABOUT 72 YEARS,
                           R/O VILL. AMHA NEAR PATEL BRIDGE TEH.
                           GOADBANAS DIST. SIDHI (M.P.)

                      2.   AMRITLAL SHUKLA S/O LATE GANGARAM
                           BRAHMAN, AGED ABOUT 68 YEARS, R/O VILLAGE
                           AMHA NEAR PATEL BRIDGE TEHSIL GOADBANAS
                           DISTRICT SIDHI (M.P.)

                      3.   BADRI PRASAD SHUKLA S/O LATE SHRI
                           GANGARAM BRAHMAN , AGED ABOUT 65 YEARS,
                           VILLAGE AMHA NEAR PATEL BRIDGE TEHSIL
                           GOADBANAS DISTRICT SIDHI (M.P.)

                      4.   RAMESH PRASAD SHUKLA S/O LATE SHIR
                           GANGARAM BRAHMAN, AGED ABOUT 60 YEARS,
                           R / O VILLAGE AMHA NEAR PATEL BRIDGE
                           TEHSIL GOADBANAS DISTRICT SIDHI (M.P.)

                      5.   ANAND PRASAD SHUKLA S/O LATE SHRI
                           JAGANNATH PRASAD SHUKLA, AGED ABOUT 50
Signature Not              YEARS, R/O VILLAGE AMHA NEAR PATEL BRIDGE
 SAN
Verified                   TEHSIL GOADBANAS DISTRICT SIDHI (M.P.)
Digitally signed by
KRISHAN KUMAR         6.   CHANDRAMAULI S/O SHRI MUDRIKA PRASAD
CHOUKSEY
Date: 2022.05.10
13:29:27 IST
                                  2
           SHUKLA, AGED ABOUT 28 YEARS, R/O VILLAGE
           AMHA NEAR PATEL BRIDGE TEHSIL GOADBANAS
           DISTRICT SIDHI (M.P.)

                                                                 .....RESPONDENTS
           (NONE )

      Th is revision coming on for admission this day, the court passed the

following:
                                       ORDER

Heard on the question of admission.

Applicants/defendants have filed this Civil Revision under Section 115 of the Code of Civil Procedure 1908 challenging the order dated 26.08.2020, whereby application filed by the present applicants/ defendants under Order 7 Rule 11 of CPC dated 8.8.2020 has been dismissed holding that the provisions of Order 23 Rule 1 (4) of CPC are not applicable to the present case.

2. Learned counsel for the applicants submits that previously the respondents/ plaintiffs instituted a suit for declaration of title and permanent injunction regarding land bearing survey No.34 area 0.065 hectare situated in Village Dainiha, Tehsil Gopadbanas, District Sidhi which by filing an application under Order 23 Rule 1 of CPC dated 22.7.2015 was withdrawn. Thereafter, the respondents/ plaintiffs have again instituted a suit although only for permanent injunction but with regard to same land bearing survey No.34 area 0.16 acre. He submits that in view of the provisions of Order 23 Rule 1 (4) of CPC the present suit being barred is liable to be rejected under Order 7 Rule 11 (d) of CPC. He further submits that learned Court below has not carefully considered the provisions of Order 23 Rule 1 (4) of CPC as well as subject matter of both the suits. Learned counsel for the applicants placed reliance on the judgments of Hon'ble Apex Court in the case of Om Prakash Vs. Suresh Kumar (2020) 13 SCC 188 and in the case of R.Akbar Ali Vs.K.Umar Khan and others 2021 SCC Online SC 238 and prays for allowing the Civil Revision.

3. Heard the learned counsel for the applicants at length and perused the record.

4. Bare perusal of copy of previous plaint dated 2.7.2015 shows that previous suit was filed for declaration of title and permanent injunction with regard

to the land bearing survey No.34 area 0.065 hectare which later-on by filing joint application under Order 23 Rule 1 of CPC was withdrawn whereby rights were abandoned only with regard to part of the land of aforesaid survey number whereas present suit appears to have been filed only for permanent injunction with regard to a part of the land area 0.16 acre of the land.

5. In view of aforesaid, it cannot be said that subject matter of the claim in both the suits is same but prima-facie it appears to be different and in fact this question can be decided by the Court below only after recording the evidence of the parties. The case laws cited by the learned counsel for the applicants being

distinguishable on facts are not helpful to the applicants.

Accordingly, this Civil Revision being bereft of merits, is hereby dismissed.

(DWARKA DHISH BANSAL) JUDGE kkc