Madhya Pradesh High Court
Ghasiram vs Mulabai @ Bhagwati Bai on 7 May, 2025
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1 MA-6159-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 7 th OF MAY, 2025
MISC. APPEAL No. 6159 of 2023
GHASIRAM
Versus
MULABAI @ BHAGWATI BAI AND OTHERS
Appearance:
Shri Rohit Bansal - Advocate for the appellant.
Shri Gaurav Mishra- Advocate for the respondent no.1.
Shri Prabhat Pateriya- Dy. Govt. Advocate for the respondent
no.2/State.
ORDER
The appellant has filed this petition challenging the judgment, dated
05.09.2023, passed by District Judge Chanderi, District Ashoknagar (M.P.)
in Regular Civil Appeal No.23-A of 2022 whereby learned Appellate Court
has set aside the order passed by the learned Trial Court and has remanded
the matter for adjudication of suit on merits. Prior thereto, the Trial Court
vide judgment dated 20.09.2022 had allowed the application under Order 7
Rule 11 CPC filed by appellant and rejected the plaint filed by the
respondent no.1 being barred by Order 23 Rule 1 CPC.
[2]. Since, the status of parties to this appeal is different in two suits
being discussed in this order, in order to avoid confusion, they are referred
with their names in this order as Ghasiram (defendant of this suit and
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plaintiff in earlier suit) and Smt. Mula Bai (plaintiff of this suit and plaintiff
in earlier suit).
[3]. The facts which are not in dispute between the parties is that the
land bearing Survey No.145 ad-measuring 1.986 hectare situated at Kasba
Chanderi, District Ashoknagar (M.P.) was owned by one Amra Sahu.
Ghasiram has filed a separate suit (C.S. No.4-A/2016) claiming declaration
of his title over the said land and for permanent injunction. Since, in this case
we are not concerned with the plaint filed by Ghasiram, the facts pleaded in
the plaint are not required to be narrated. In this case, we are concerned with
the issue as to whether the present suit filed by Mula Bai is barred under
Order 23 Rule 1(4) CPC as the averments made and the relief claimed by her
in this suit are similar to the counter claim filed her in C.S. No.4-A/2016.
COUNTER CLAIM FILED BY SMT. MULA BAI IN C.S. NO.4-A
OF 2016
[4]. In the suit filed by Ghasiram, Smt. Mula Bai had earlier filed a
counter claim inter-alia pleading that Smt. Kalawati Bai was earlier married
to one Amaan Sahu and out of this wedlock, Ghasiram was born; that after
the death of Amaan Sahu, Smt. Kalawati was married to Amra Sahu and out
of this wedlock, Mula Bai was born. It is pleaded in the counter claim that
Mula Bai and Ghasiram are the sister & brother having common mother-
Smt. Kalawati Bai. Being the daughter of Amra Sahu & Kalawati Sahu,
Mula Bai had claimed half share in the aforesaid land left by Amra Sahu
which comes to 0.993 hectare. In the counter claim, Mula Bai had pleaded
that even though she is entitled to half share in the property, in order to grab
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the property, Ghasiram filed an application for mutation of his name over the
entire land before Naib Tehsildar, wherein she raised the objection. It is
pleaded that, in order to give favour to Ghasiram, Mula Bai's name was
mutated only over 1/4th share (i.e. 0.496 hectare) of land left by Amra Sahu
whereas she was entitled to 1/2 share i.e. 0.993 hectare. Smt. Mula Bai has
also pleaded that the will, dated 19.03.1985, allegedly executed by Smt.
Kalawati in favour of Ghasiram is forged. Smt. Mula Bai had prayed for
following relief in the counter claim:
"अ) यह क यह घो षत कया जाते क क बा च दे र थत भूिम
सव . 145 रकबा 1.986 है ० भूिग व० अमरा साहू के व व
वािम व एवं आिधप य क भूिम थी उ भूिम के संबंध मे
बसीयत नाम दनांक 12-6-1979 के आधार पर नामां ण पंजी क0
193 आदे श दनांक 13.12.79 विध ब होने से िनर त कया
जावे ।
(ब) यह क यह घो षत कया जाने क ितबाद क० 1 व० अमरा
साहू क पु ी होने के नाते बाद त भूिम मे ह सा 1/2 अथात
रकबा 0.993 है ० भूिम ा करने क अिधकार है जसमे से ािथया
को िमली 0.496 है ० भूिम को छोड़ कर शेष ब चा रकबा 0.497 है ०
भूिम ािथया / ितवाद क0 1 और ा करने क अिधकार है ।
तथा इसी अनुसार राज व रकाड म नामां ण कराने क अिधकार
है ।
(स) यह क वाद का दावा िनर त कर ितवाद क0 1/ ाथ या क
ओर से तुत यह ितदावा वीकार कया जावे।
(द) यह क ितदावा का यय वाद से दलाया जावे अ य सहायता
जो ाथ या को लाभा वत कर वाद से दलाई जावे।"
[5]. From reading the averments made in counter claim, it is evident
that since Mula Bai had already received 0.496 hectare of land i.e. her 1/4th
share in the land, in mutation proceedings, she claimed remaining 0.497
hectare in the counter claim. Later on, Mula Bai sought to withdraw her
counter claim which was allowed by the learned Trial Court vide order,
dated 30.11.2017. It is evident from the said order that the counter claim was
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permitted to be withdrawn without granting any liberty to Mula Bai to file
fresh suit for the same relief. Infact, such a liberty was asked for in the
application, however, the Trial Court did not grant any liberty in view of the
fact that the counter claim was not withdrawn on account of any formal
defect. Thus, the liberty was infact refused by the Trial Court.
PRESENT SUIT FILED BY SMT. MULA BAI
[6]. Smt. Mula Bai has now filed the present suit inter-alia with the
similar averments and for the similar relief which were claimed by her in the
counter claim in C.S. No.4-A of 2016. The relief claimed by Smt. Mula Bai
in the present suit is reproduced hereunder for ready reference and for
comparison:
"अ) यह क भूिम सव . 145 रकवा 1.986 हे ० भूिम थत क वा
च दे र जला अशोकनगर मे वा दया का ह सा 1/2 म से म से शेष
रकवा 0.497 हे ० भूिम क वा दया भूिम वामी एवं आिधप य धार
घो षत क जाव।
(ब) यह क ितवाद . 01 के व इस आशय क थाई
िनषेधा ा सा रत क जाव क वह वा दया क वाद त भूिम म
कसी भी कार से दखल उ प न नह ं कर व कसी भी कार से
वाद त भूिम को खुद- बुद नह ं कर तथा वाद त भूिम का
विधवत बटवारा कर।
(स) यह क अ य सहायता माननीय यायालय उिचत समझे जो
वाद या के हत म हो दलाई जावे ।
(द) यह क ितवाद . 01 ारा य द कोई वसीयतानामा तुत
कया जाता है तो वह वाद के व वो के मुकाबले यथ व भावह न
घो षत कया जावे। रण म वा दया को ितवाद . 01 से हजा
खचा भी दलाया जावे ।"
[7]. From, the plaint averments, it is gathered that in this case also
Mula Bai has claimed 1/2 share in the property left by Amra Sahu & Smt.
Kalawati. She has made claimed on the ground she being daughter of Amra
Sahu-Smt. Kalawati. She has also narrated in plaint the factum of having
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received 1/4th share i.e. 0.496 hectare of land, in mutation proceedings and
has thus claimed remaining 0.497 hectare of land in the present suit. It is thus
found that the subject matter of counter claim as also the plaint now filed by
Mula Bai is same.
APPLICATION UNDER ORDER 7 RULE 11 CPC FILED BY
GHASIRAM
[8]. Ghasiram filed an application under Order 7 Rule 11 CPC seeking
rejection of the plaint on the ground that the subsequent suit, being based
upon the similar averments and for the similar relief, is barred under the
provisions of Order 23 Rule 1(4) CPC inasmuch as the counter counter claim
was withdrawn by Mula Bai without reserving any liberty to file a fresh suit.
Ghasiram has also raised issue of res-judicata in his application. Smt. Mula
Bai opposed the prayer made by Ghasiram. The learned Trial Court vide
judgment & decree, dated 20.09.2022, allowed the application and rejected
the plaint being barred under Order 23 Rule 1 CPC as the counter claim was
withdrawn by Mula Bai without reserving liberty to file fresh suit.
[9]. Being aggrieved, Smt. Mula Bai challenged the judgment &
decree passed by the Trial Court by filing an appeal under Section 96 of the
Code of Civil Procedure. The appeal has been allowed by the impugned
judgment and after setting aside the judgment by the Trial Court, the
Appellate Court has remanded the matter for deciding the suit on merits. The
learned Appellate Court has held that the property which is subject matter of
the present suit is different than the property which was involved in the
counter claim. The another ground for setting aside the judgment of Trial
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Court, as assigned by the Appellate Court, is that in the order dated
30.11.2017, there is no prohibition imposed by the Trial Court for filing
afresh suit.
[ 1 0 ] . The learned counsel for the appellant submitted that the
averments made in the counter claim and the relief prayed therein is exactly
the same as in the present suit. He submitted that the finding of Appellate
Court that the property in question is different in both the proceedings is
factually incorrect. He also submitted that the observation of learned
Appellate Court that since there is no prohibition imposed by the Trial Court
for filing fresh suit, the present suit is maintainable, is contrary to provisions
of Section 23 Rule 1 CPC. He submitted that unless the counter claim was
withdrawn with liberty, the subsequent suit for the same relief is not
maintainable. He thus prayed for setting of the impugned judgment and
restoration of the judgment passed by the Trial Court.
[11]. On other hand, learned counsel for the respondent submitted that
the objection being raised by Ghasiram is in fact based upon the principles of
res judicata which cannot be decided at the stage of considering application
under Order 7 Rule 11 CPC. He submitted that the issue of res judicata is a
mixed question of facts and law and can be decided only after leading
evidence by both the sides. He also submitted that while considering the
application under Order 7 Rule 11 CPC, only the plaint averments are
required to be seen and the defence taken by defendant and/or documents
relied upon by him cannot be looked into. He placed reliance upon the Apex
Court judgment in the case of Keshav Sood Vs. Kirti Pradip Sood passed in
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SLP (C) No. 35740 of 2017 . The learned counsel for respondent thus
supported the impugned judgment and prayed for dismissal of appeal.
[12]. Considered the arguments of both the sides and perused the
record.
[13]. Before adverting to facts of the present case, it is profitable to
refer to provisions of Order 23 Rule 1(4) CPC under which the present suit is
stated to be barred. Order 23 Rule 1 CPC 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, it 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
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(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 and shall be
precluded from instituting any fresh suit in
respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the
Court to permit one of several plaintiffs to abandon
a suit or part of a claim under sub-rule (1), or to withdraw,
under sub-rule (3), any suit or part of a claim, without the
consent of the other plaintiffs."
[14]. It is clear from reading Rule 1(4) that a party is precluded from
instituting fresh suit in respect of same subject matter if the earlier suit is
withdrawn without liberty.
[15]. Keeping the aforesaid legal provision in mind, the facts of this
case are required to be examined. As seen from the relief quoted
hereinbefore, the relief claimed in both proceedings viz. counter claim and
the present suit filed by Smt. Mula Bai, are same. She has claimed 0.497
hectare of her remaining share in the entire land left by Amra Sahu. The
averments on the basis of which the relief is claimed are also similar in
counter claim and the plaint. Apparently, the subject matter of both the
proceedings is same and is thus hit by provision of Rule 1(4) of Order 23
CPC.
[16]. The finding of learned Appellate Court that the property in the
counter claim is different than the one in present suit, appears to be factually
incorrect. If minutely examined, it is found that the property in both
proceedings is same which is 0.497 hectare of land claimed to be Mula Bai's
remaining share in the land left by Amra Sahu. Therefore, the finding of
learned Appellate Court that the properties in counter claim and the present
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suit are different, is factually incorrect and it is held that the property
involved in both the proceedings is the same.
[17]. The Appellate Court has set aside the judgment of the Trial Court
also on the ground that in its order, dated 30.11.2017, the Trial Court has not
imposed on Mula Bai, any prohibition in filing fresh suit. This reason is also
unsustainable in view of specific provision of Order 23 Rule 1(4) CPC. If the
suit (counter claim in this case) is withdrawn without reserving any liberty,
the fresh suit cannot be filed. Even otherwise, Mula Bai actually asked for
the liberty in her application, however, the Trial Court did not grant any
liberty in view of the fact that the counter claim was not withdrawn on
account of any formal defect. Thus, the liberty was in fact refused by the
Trial Court.
[18]. Therefore, since the counter claim and the present suit are based
upon same subject matter, the fresh suit filed by the plaintiff is barred under
the provisions of Order 23 Rule 1(4) CPC.
[19]. Now, the contention of the respondents' counsel that issue of res
judicata cannot be decided at the initial stage, needs to be considered. It is to
be noted that the counter claim was withdrawn by Mula Bai and, therefore,
there is no issue heard and finally decided in counter claim. The issue of res-
judicata is thus not applicable in the facts of present case. What is to be seen
in this case is as to whether the suit filed by Mula Bai is hit by Order 23 Rule
1(4) CPC. The Apex Court has dealt with the term subject matter as used in
Order 23 Rule 1 CPC in the case of Vallabh Das Vs. Dr. Madan Lal reported
in (1970) 1 SCC 761 , wherein the court in para 5 held as under:
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"5. Rule 1 of the Order 23, Code of Civil Procedure
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 term 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......"
[20]. Thus, for deciding as to whether a suit is hit by provisions of
Order 23 Rule 1(4) CPC or not, not only the property but also the right in the
property which the plaintiff seeks to enforce, is required to be seen. Further,
the cause of action and the relief claimed in the present suit are also required
to be same. As discussed above, the averments made and the relief claimed,
in counter claim as also in the present suit are same.
[21]. The counsel for respondent raised another objection that while
considering the application under Order 7 Rule 11 CPC, only the plaint
averments are required to be seen and the defence of defendant cannot be
looked into. In this regard, it is seen that the factum of having filed counter
claim in the earlier suit, and the withdrawal of the same vide order, dated
30.11.2017, has been pleaded by Mula Bai in para 8 of the plaint itself.
Now, the question as to whether the court can examine the counter claim and
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the order, dated 30.11.2017, while deciding the application under Order 7
Rule 11 CPC, needs to be examined. In order to examined the similarity of
cause of action, the unimpeccable documents can be looked into. This has
been so held by Apex Court in the case of Dahiben Vs. Arvindbhai Kalyanji
Bhanusali reported in (2020) 7 SCC 366 . The Apex Court has held as under:
"23.8. Having regard to Order 7 Rule 14 CPC, the documents
filed along with the plaint, are required to be taken into
consideration for deciding the application under Order 7 Rule
11(a) . When a document referred to in the plaint, forms the
basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the court
would determine if the assertions made in the plaint are
contrary to statutory law, or judicial dicta, for deciding
whether a case for rejecting the plaint at the threshold is made
out.
23.10. At this stage, the pleas taken by the defendant in the
written statement and application for rejection of the plaint
on the merits, would be irrelevant, and cannot be adverted to,
or taken into consideration. [Sopan Sukhdeo Sable v. Charity
Commr., (2004) 3 SCC 137]
23.11. The test for exercising the power under Order 7 Rule
11 is that if the averments made in the plaint are taken in
entirety, in conjunction with the documents relied upon,
would the same result in a decree being passed. This test was
laid down in Liverpool & London S.P. & I Assn.
Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I
Assn. Ltd. v. M.V. Sea Success I , (2004) 9 SCC 512] which
reads as : (SCC p. 562, para 139)
"139 . Whether a plaint discloses a cause of action or not
is essentially a question of fact. But whether it does or
does not must be found out from reading the plaint
itself. For the said purpose, the averments made in the
plaint in their entirety must be held to be correct. The
test is as to whether if the averments made in the plaint
are taken to be correct in their entirety, a decree would
be passed."
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23.15. The provision of Order 7 Rule 11 is mandatory in
nature. It states that the plaint "shall" be rejected if any of the
grounds specified in clauses (a) to (e) are made out. If the
court finds that the plaint does not disclose a cause of action,
or that the suit is barred by any law, the court has no option,
but to reject the plaint.
23.14. The power under Order 7 Rule 11 CPC may be
exercised by the court at any stage of the suit, either before
registering the plaint, or after issuing summons to the
defendant, or before conclusion of the trial, as held by this
Court in the judgment of Saleem Bhai vs. State of
Maharashtra [Saleem Bhai v. State of Maharashtra , (2003) 1
SCC 557] . The plea that once issues are framed, the matter
must necessarily go to trial was repelled by this Court
in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986
Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji
Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998)
2 GLH 823] .
23.13. If on a meaningful reading of the plaint, it is found
that the suit is manifestly vexatious and without any merit,
a n d does not disclose a right to sue, the court would be
justified in exercising the power under Order 7 Rule 11 CPC.
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh
Ores (P) Ltd. v. Hede & Co. , (2007) 5 SCC 614] the Court
further held that it is not permissible to cull out a sentence or
a passage, and to read it in isolation. It is the substance, and
not merely the form, which has to be looked into. The plaint
has to be construed as it stands, without addition or
subtraction of words. If the allegations in the plaint prima
facie show a cause of action, the court cannot embark upon
an enquiry whether the allegations are true in fact. D.
Ramachandran v. R.V. Janakiraman [D.
Ramachandran v. R.V. Janakiraman , (1999) 3 SCC 267; See
also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR
1962 SC 941] ."
[22]. What comes out from reading the aforesaid dictum of Apex
Court, for deciding the similarity of cause of action in two proceedings, the
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documents referred in the plaint itself can be looked into. In the facts of this
case, the counter claim filed by Mula Bai and the order passed thereon by
court on 30.11.2017, is duly pleaded in plaint and, therefore, Mula Bai
cannot dispute the averments made in counter claim. The documents viz. the
counter claim filed by Mula Bai and the order, dated 30.11.2017, are in fact
the admitted documents. This court therefore, can examine the counter claim
and the order, dated 30.11.2017, in order to examine the maintainability of
the present suit vis-a-vis the provisions of Order 23 Rule 1 CPC.
[23]. Considering the totality of facts and circumstances of the present
case, this court is of considered opinion that the present suit filed by the
Mula Bai is barred under Order 23 Rule 1(4) CPC, and the same was rightly
rejected by the learned Trial Court. The Appellate Court erred in setting
aside the judgment passed by the Trial Court. Hence, the impugned judgment
dated 05.09.2023 passed by Appellate Court is set aside and the judgment
dated 20.09.2022 passed by Trial Court is restored.
[24]. The appeal is accordingly allowed and disposed of.
(ASHISH SHROTI)
JUDGE
vpn/-
