Madhya Pradesh High Court
Smt.Asha Rajpal vs Shivendra Nath Gupta on 2 May, 2023
Author: Sunita Yadav
-( 1 )- S.A. No. 172 of 2012
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
SECOND APPEAL No. 172 of 2012
BETWEEN:-
SMT. ASHA RAJPAL W/O LATE DILIP
KUMAR, AGED ABOUT 55 YEARS, 48,
1.
SINDH VIHAR COLONY, LASHKAR,
GWALIOR (MADHYA PRADESH)
KUMAR RENUKA D/O LATE DILIP
KUMAR, AGED ABOUT 35 YEARS,
2 OCCUPATION: 48 SINDH VIHAR
COLONY LASHKAR GWALIOR MP
(MADHYA PRADESH)
VIKAS RAJPAL S/O LATE DILIP
KUMAR, AGED ABOUT 32 YEARS,
3 OCCUPATION: 48 SINDH VIHAR
COLONY LASHKAR GWALIOR MP
(MADHYA PRADESH)
NISHA DEVI W/O KISHORE KUMAR
RAJPAL, AGED ABOUT 51 YEARS,
4 OCCUPATION: 48 SINDH VIHAR
COLONY LASHKAR GWALIOR MP
(MADHYA PRADESH)
.....APPELLANTS
(SHRI HARISH DIXIT-LEARNED COUNSEL FOR THE
APPELLANTS) .
AND
1.
SHIVENDRA NATH GUPTA S/O LATE
Signature Not Verified
Signed by: SANJAY RAMSWAROOP GUPTA, AGED ABOUT 71
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 2 )- S.A. No. 172 of 2012
YEARS, SHIV BHAWAN, NAYA BAZAR,
LASHKAR, GWALIOR (MADHYA
PRADESH)
VIJAY GUPTA S/O LATE RAMSWAROOP
GUPTA, AGED ABOUT 57 YEARS,
2 OCCUPATION: SHIV BHAWAN NAYA
BAJAR LASHKAR GWALIOR MP
(MADHYA PRADESH)
AJAY GUPTA S/O LATE RAMSWAROOP
GUPTA, AGED ABOUT 55 YEARS,
3 OCCUPATION: SHIV BHAWAN NAYA
BAJAR LASHKAR GWALIOR MP
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI K.N. GUPTA - SENIOR ADVOCATE WITH MS. AYUSHI
POPLI - ADVOCATE FOR THE RESPONDENTS.
Reserved on : 26.04.2023
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Whether approved for reporting : YES
This appeal coming on for pronouncement of judgment on this
day, the court passed the following:
JUDGMENT
(Passed on 02/05/2023)
1. This Second appeal under Section 100 of Civil
Procedure Code (for brevity, CPC) has been filed by the
Signature Not appellants
Verified against the impugned judgment and decree dated
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 3 )- S.A. No. 172 of 2012
06/03/2012 passed by Court of 10 t h Additional District
Judge, Gwalior in Civil Appeal No. 10-A/2012, whereby,
the judgment and decree dated 16/09/2011 passed by the
Court of 1 s t Civil Judge Class-II, District Gwalior in Civil
Suit No. 48-A/2011 has been partly reversed (in respect to
godown 'B'), by virtue of which, suit had been decreed
giving relief of permanent injuction in respect to two
godowns marked and shown as 'B' and 'C' in the plaint map.
2. The necessary facts for disposal of the present appeal
in short are that suit was filed by the appellant/plaintiffs
stating therein that the predecessors of plaintiffs have been
inducted as tenants in the shop marked and shown as 'A' in
the plaint map. Ever since induction of predecessor of
plaintiffs as tenant in the year 1993 they have been
involved in business of clothing in the name of Vatanmal
Thakurdas. During subsistence of tenancy, plaint required
godowns for storing their stock of cloth, so, they took/
entered into tenancy for two godowns with the defendants
which are marked and shown as 'B' and 'C' in the plaint map
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 4 )- S.A. No. 172 of 2012
@ rent of Rs. 135/- and Rs. 60/- respectively. There arose
family disputes in the family defendants with regard to
present disputed property and their other properties. In the
said disputes, competent Court has appointed Shri M.N.
Pendarkar, Advocate as Court receiver, and so, plaintiffs
started depositing rent with the said Court receiver.
Plaintiffs have lastly paid the rent on 15.09.1989 up till the
period 31.08.1989, thereafter Court receiver has stopped
receiving the rent from plaintiffs which was intimated to
defendants upon which they replied that defendants will
inform the plaintiffs after resolution of disputes. But,
defendants did not inform anything to plaintiffs and,
defendant no. 2 straightway threatened plaintiff no. 1 in the
year 2004 to evict the godown 'B' and in furtherance he
started dismantling terrace and parapet wall. So, plaintiffs
filed civil suit no. 16A/2005 before the civil court wherein
defendants have admitted their wrong act. Thus, plaintiffs
got that suit dismissed in default. However, defendants,
again with their ill intention, have started damaging godown
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 5 )- S.A. No. 172 of 2012
'B' and, on 25.09.2010, defendants threatened plaintiffs to
evict both the godowns. Therefore, the suit was filed for
perpetual injuction for the relief to prohibit the defendants
to interfere in the settled possession of plaintiff over the
godowns 'B' and 'C'.
3. The defendants have filed their joint written
statements, but did not specifically deny that the disputed
godowns have never been given on tenancy to plaintiffs. It
is contended by them that 'B' godown is merely Khandhar
which is in possession of defendant no. 2. Further godown
marked as 'C' is in closed condition for last 15-20 years.
Receiver has already been removed by the Court on
31.07.1989, since then, actual physical possession of
disputed godown is lying with defendants. Plaintiffs have
never paid any rent to defendants. Also, plaintiffs have
never been into possession. Predecessor of plaintiffs i.e.
Dilip Kumar had earlier filed a suit which was dismissed in
non-production of evidence. Thus, present suit is not
maintainable and deserves to be dismissed.
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 6 )- S.A. No. 172 of 2012
4. On the basis of pleadings learned trial court has
framed as many as six (6) issues and parties were directed
to lead their evidence. After hearing the learned counsel for
the rival parties and perusing the oral & documentary
evidence available on record, learned trial court has not
found to be proved that the plaintiffs are the tenants of
defendants, however, on the ground of their settled
possession, decreed the suit and granted the relief of
perpetual injunction to prohibit the defendants to interfere
in the settled possession of plaintiff over the godowns 'B'
and 'C'. Thereafter, defendants preferred first appeal under
Section 96 CPC against the judgment & decree of learned
trial court which has been partly allowed by learned lower
appellate Court vide impugned judgment and decree to the
extent of godown 'C' only resulting into dismissal of suit to
the extent of grant of injunction in respect of godown 'B' on
the premise that suit for injunction to the extent of godown
'B' is barred by law under Order 9 Rule 9 C.P.C. Hence, the
instant second appeal has been filed.
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 7 )- S.A. No. 172 of 2012
5. Learned counsel for the appellants argued that learned
appellate Court has committed an error in partly dismissing
the suit of plaintiffs/appellants to the extent of godown 'B'
by wrongly applying the principle of Order 9 Rule 9 CPC,
and holding that the cause of action in both the suits are
same because in second suit the cause of action is different.
It is further argued that present suit for injunction has been
filed upon the cause of action arose to the plaintiffs/
appellants by the interfering/threatening act of
defendants/respondents on 25/09/2010. So, it is ample clear
that the causes of action are quiet separate in two suits.
Also, character of suit for injunction in respect of recurring
cause of action cannot be overlooked while adjudicating the
present suit. He further argued that impugned judgment and
decree is an outcome of non reading/misreading of the
evidence and wrong application of law. Therefore, where
the first suit is dismissed for default of appearance of the
plaintiff this suit ought to have been decreed and the
impugned judgment and decree may be set aside to the
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 8 )- S.A. No. 172 of 2012
extent of godown "B" and further prayed to decree the suit
in toto.
6. On the other hand, learned counsel for the
respondents/defendants supported the impugned judgment
and decree passed by the court below and prayed for
dismissal of the instant appeal being bereft of merit and
substance.
7. Heard learned counsel for the rival parties at length
and perused the material available on record.
8. This appeal was admitted for final hearing on the
following substantial question of law:-
"Whether the court below is justified in
dismissing the Suit /appeal on the ground that
suit for injunction is barred by law under Order 9
Rule 9 of CPC overlooking the fact that suit has
been filed for permanent injunction on the basis
of new cause of action?"
9. For the purpose of deciding this appeal provisions of
Order 9 Rule 9 of CPC are relevant, which reads thus:-
Signature Not Verified
"9. Decree against plaintiff by default bars fresh suit.
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 9 )- S.A. No. 172 of 2012
(1)Where a suit is wholly or partly dismissed under rule 8,
the plaintiff shall be precluded from bringing a fresh suit
in respect of the same cause of action. But he may apply
for an order to set the dismissal aside, and if he satisfies
the Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the
Court shall make an order setting aside the dismissal
upon such terms as to costs or otherwise as it thinks fit.
and shall appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of
the application has been served on the opposite party."
According to aforesaid provisions, when defendant
appears and plaintiff does not appear at the time of hearing
before the court, then suit deserves to be dismissed subject
to admitted claim of the defendant and if suit is dismissed
under these provisions then plaintiff shall be precluded for
bringing a fresh suit in respect of same cause of action, but
he may apply for setting aside above dismissal and if court
satisfied with the explanation of non-appearance of plaintiff
on the date of dismissal of suit court it shall make an order
for setting aside the dismissal subject to terms and cost as
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 10 )- S.A. No. 172 of 2012
enumerated under Rule 9 as aforesaid.
10. In the case of Munnalal vs. Jabalpur Vikas
Pradhikaran and Anr. reported in 2005 Legal Eagle
(M.P.) 625 equivalent citation : 2005 (4) MPLJ 81 , the
Division Bench of this Court has held that " for the relief of
perpetual injunction fresh case of action may arise
everyday."
11. In view of this, when we examine the case at hand then
it is specifically pleaded in para 9 of the plaint that cause of
action of the present suit arose only on 25.09.10. This was
not only pleaded but also proved by adducing cogent
evidence. It is apparant that the previous civil suit No. 16
A/ 05 was filed on the basis of cause of action arose on
26.05.05. Both the suit are filed for perpetual injuction and
as discussed above for the relief of perpetual injunction,
fresh case of action may arise every day. Therefore, it is
undisputed fact that cause of action of present suit is a
different one than the cause of action mentioned in the
Signature Not earlier
Verified suit i.e. Civil Suit No. 16-A/05, which was
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 11 )- S.A. No. 172 of 2012
dismissed in default (Not on merits) on 28.08.06 by Second
Civil Judge Class II, Gwalior and when subsequent suit is
based on different cause of action then it cannot be said the
suit is barred under Order 9 Rule 9 of Civil Procedure
Code.
12. The learned counsel for the respondents has placed
reliance upon the case of Suraj Rattan Thirani vs.
Azamabad Tea Company Limited, in which it is held that
in abscence of same cause of action second suit is not maintanable.
However, the facts and circumstances of the said case are
totally different from this case. In the case of Suraj Rattan
Thirani (supra) the suit was filed by the plaintiff for
claiming the title and recovery of possession and the
proceedings giving rise to the appeal were concerned with
the rights of his heirs to it. The said suit was based on the
title of the plaintiffs by reason of their purchases. The only
new allegation was about the plaintiffs getting into
possession by virtue of purchase and their dispossession.
Therefore, second suit was held to be barred by law as the
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 12 )- S.A. No. 172 of 2012
source of title for purchase was the same even in subsequent
purchases. Therefore, the facts and circumstances of this
case being different with the case of Suraj Rattan Thirani
(supra) the same does not help the respondants. Thus, in
the light of provisions of Order 9 Rule 9 of CPC and the law
laid down in the case of Munnalal (supra) the present suit
is found to be maintenable in respect to the the godown "B"
as well because the fresh cause of action for this case arose
after the dismissal of previous suit. Consequently, the
substantial question of law is answered that
"The learned first appellate court was not
justified in dismissing the Suit/appeal to the
extent of godown "B" on the ground that the
present suit for injunction is barred by law under
Order 9 Rule 9 of CPC overlooking the fact that
suit has been filed for permanent injunction on
the basis of fresh/new cause of action"
13. Since learned First Appellate Court has erred in
Signature Not Verified
dismissing the suit in respect to the extent of godown "B",
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
-( 13 )- S.A. No. 172 of 2012
Consequently, the present appeal is allowed and the
impugned judgment and decree dated 06/03/2012 passed by
10 t h Additional District Judge, Gwalior in Civil Appeal No.
10-A/2012,is hereby quashed.
There shall be no order as to costs.
Certified copy as per rules.
(SUNITA YADAV)
JUDGE
Durgekar*
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 03-05-2023
02:33:54 PM
