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TMI Blog2003 (3) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... nd decree dated 30th August, 1958. Ram Chandra preferred appeal against the decree dated 30th August, 1958 before the Additional Commissioner, Bikaner Division, Bikaner; which was registered as Appeal No. 183/58, The appeal of Ram Chandra was initially dismissed by the appellate Court but said dismissal was set aside in second appeal by the Board of Revenue by its order dated 25-1-1960 and the matter was remanded back to the first appellate Court. After remand, the first appellate Court allowed the appeal of Ram Chandra by the judgment and decree dated 22nd August, 1960. The appellate Court passed the decree for possession in favour of plaintiff-Ram Chandra against defendant-petitioner-Hari Ram. However, in this very judgment the pleas of the defendant-petitioner, he got the possession of the half land of Bhoor Bai through Karta, who was tenant of Bhoor Bai and half land deed executed by Bhoor Bai in favour of the petitioner. The appellate Court observed that Ram Chandra can only evicted by the person who let out the land to the Ram Chandra after rejecting the plea of petitioner that he got the land from Bhoor Bai or Karta. The person entitled to take possession from plaintiff-Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l representatives of deceased-Ram Chandra, claiming that he is : (1) Khatedar tenant of the land in dispute (still no relief of declaration was sought); (2) he (petitioner) was wrongfully dispossessed by the L.R. of the deceased-Ram Chandra (hereinafter referred to as non-petitioners); (3) possession of the land was wrongfully and illegally delivered to the non-petitioners in Execution Case No. 6/63; (4) the order of the Sub-Divisional Magistrate dated 13-5-1982 was arbitrary and illegal and the non-petitioners have no right to remain in possession in pursuance of all above orders; (5) the deceased-Ram Chandra in his lifetime took ₹ 900/- from the, petitioner and agreed that he will not take any further action in this matter and therefore, did not executed the decree till 1973 and because of this the non-petitioners had no right to take possession of the land in dispute; (6) even if deceased-Ram Chandra had any right to cultivate the land in dispute, he lost right to keep possession after five years of his alleged sub-tenancy. 6. After prosecuting above Suit No. 49/ 83 for seven years and during the pendency of said suit, the petitioner filed another suit, which was regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the defendants-non-petitioners, but the trial Court held that mere withdrawal of the Suit No. 49/83 will not prohibit the petitioner from filing the second suit, but in view of the decision given on issues referred to above, the suit of the plaintiff was dismissed by judgment dated 24th July, 1995. 9. The petitioner preferred an appeal before the Revenue Appellate Authority, which was dismissed by the Revenue Appellate Authority, Bikaner vide judgment and order dated 13th November, 1997. The petitioner preferred second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 before the Board of Revenue, which was also dismissed by Board of Revenue, Ajmer vide order dated 7th April, 2000 (Anex. B). Yet not satisfied, the petitioner preferred review of the Board of Revenue's order dated 7th April, 2000, which was also dismissed by the Board of Revenue on 3rd April, 2002. 10. The petitioner is now challenging the order of the Assistant Collector dated 24th July, 1995 (Annex. 6), the order of the Revenue Appellate Authority dated 13th Nov., 1997 (Annex. 7), the order of the Board of Revenue dated 7th April, 2000 (Annex. 8) and the order dated 3rd April, 2002 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that earlier suit was for the land measuring 18 Bigha 9 Biswa of Khasra No. 295 whereas subsequent Suit No. 101/90 was with respect to the total land measuring 271/4th Bigha of Khasra No. 295. According to learned counsel for the petitioner, assuming for the sake of argument that earlier suit was barred with respect to 18 Bigha 9 Biswa land of Khasra No. 295 and still the suit with respect to the land, which is not included in the earlier suit, could not have been dismissed by the trial Court. 13. Learned counsel for the petitioner relied upon the Explanation 1 of Section 11, C.P.C., which provides that the expression former suit used in Section 11 denotes the suit, which has been decided prior to the suit in question whether or not it was instituted prior. According to learned counsel for the petitioner, since, earlier suit was with drawn by the plaintiff-petitioner and, therefore, the Court has not decided the earlier suit or even any issue so as to create a bar of res judicata for second suit. 14. I perused all the judgments and orders placed on record by the petitioner including the copies of the plaint of both the cases as well as alleged agreement executed by Ram C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 145 and 146(1) of the Cr. P.C., but without disclosing why said agreement of the year 1962 was not used by the petitioner till 1969, when the Board of Revenue dismissed the appeal of the petitioner and in the S.D.M.'s Court, when order was passed in the year 1981, During the pendency of the suit, the petitioner filed another suit on 6th June, 1990. This fresh Suit No. 101/90 was filed without taking permission from the Court to withdraw earlier Suit No. 49/83, which according to learned counsel for the petitioner was not required because at that time the petitioner did not withdraw the earlier Suit No. 49/83 and the subsequent Suit No. 101/90 was filed during the pendency of the earlier suit. According to learned counsel for the petitioner, the permission is required, in case where plaintiff wants to file another suit after withdrawing the earlier suit only. 15. The facts referred to above are sufficient to show that the petitioners coming from the village assisted by an Advocate of remote place, that too, as back as in the year 1958 cannot be said to be so innocent and unaware of technicalities of laws as claimed by them, particularly if they want to abuse the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 1(3) of the C.P.C. only if party wants to institute a fresh suit in respect of the same subject-matter. Order 23, Rule 1(3), C.P.C. is not dealing with the situation where before withdrawal of suit, the plaintiff files another suit and thereafter, withdraws earlier suit, The Court can grant permission to file fresh suit only on fulfilment of the requirements under the provisions of Order 23, Rule 1(3). When procedure has been given in the Code of Civil Procedure for filing fresh suit after institution of one suit by the plaintiff, then it excludes the procedure by which the parties, on: their own whims and wish can file fresh suit and bye-pass the procedure and make the provisions of law nugatory. Not only this but it appears that the argument of the learned counsel for the petitioner came by ignoring not only above legal position, but has been advanced without noticing true meaning of effect of Sections 10, 11 and 12 and Order 2, Rules 1 and 2, C.P.C. and other relevant provisions of C.P.C. Fundamental aim and object is to avoid multiple suits may it be founded on same cause of action or may be relating to same subject-matter. Section 12 bars the plaintiff from instituting fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conceding to pleas of defendant on the same analogy of reasoning given by the Hon'ble Supreme Court in the case of Sarguja Transport Service case reported in AIR 1987 SC 88 and Full Bench decision of this Court in S.B. Civil Special Appeal No. 760/1995, Hanuman Singh v. B.O.R., decided on 17-5-2002 : (AIR 2002 Raj 365). Once suit is filed in Court, as far as possible dispute between the parties must be settled completely, which will be not only in the interest of the parties to the suit, but it will be in favour of public interest also as it will avoid dragging of the parties to Court again and again, it will save the precious time of the Courts, it will avoid multiplicity of suits, it will result in avoiding conflicting judgments and orders and it will settle the dispute once for all. By this time the Court can be made available for deciding bona fide litigation instead of Court's becoming tool in the hands of litigant to provide litigant mould the proceeding of trial of suits to keep the dispute alive for indefinite period and to compel other party to file another suit for the decision on the issues, which were already subject-matter in Issues in the suit. 17. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remains is that the cause of action accrued to the petitioner for filing suit, for declaration of his alleged Khatedari rights and to seek decree for possession against the deceased-Ram Chandra immediately on passing of the decree dated 22nd Aug., 1960 in favour of Ram Chandra. (Though in fact after Judgment dated 22nd Aug., 1960 petitioner cannot claim any right over the land in dispute because his claim of obtaining possession or right to possession even was rejected by the competent Court): Foundation of claim of the petitioner was the Khatedari of entire land of Khasra No. 60 (new No. 295) and the plaintiff could have succeeded in his suit only after getting declaration of his Khatedari over the entire land. Petitioner neither pleaded nor could have claimed relief of partial declaration of Khatedari over the only land, which, according to the petitioner, is in possession of defendants-non-petitioner. Therefore, the second suit of the petitioner is barred under Order 2, Rule 2, C.P.C. for the claim, which petitioner failed to include in his earlier suit and abandoned his claim for the reliefs, which he claimed in the earlier suit of 1983 by withdrawing it without leave of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still subsequent suit of the plaintiff and trial and adjudication on issues for which there was contest in earlier suit and the plaintiff withdrew his claim and withdrawn his contest on issues framed therein, will be deemed to have abandoned his claim and conceded to the plea of the defendant and this will be in consonance with the entire scheme of the Civil Procedure Code and will be in consonance with the aim and object of providing main provisions like Order 2, Rules 1 and 2 in the Civil Procedure Code, which prohibit multiple suits and raising issue in Court again and again and will be in consonance of decision of Hon'ble Supreme Court in Sarguja Transport Service's case. 21. The Hon'ble Supreme Court in the case of Sarguja Transport Service's case, reported in AIR 1987 SC 88 while considering the question of entertainment of subsequent writ petition applied the principle of Rule 1 of Order 23 of the C.P.C. even in writ proceedings, and held that withdrawal of petition without permission of the Court bars second writ petition, which is not on the ground of res judicata, but bar is due to real reason behind based on a matter of public policy and a litigant sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure providing for dealing with the suit and the plaintiff cannot have any liberty to deal with his suit as per his own whims. The Civil Procedure Code prescribes complete procedure about how the suit can be dealt with by the parties and the Courts. Rule 1 of Order 2 cast a duty upon the plaintiff to frame the suit in such a manner so that final decision may be given by the Court UPON the SUBJECTS in DISPUTE (not only upon cause of action or relief claimed in the suit) and it should prevent further litigation. In Rule 2 of Order 2. SUBJECTS in DISPUTE has been used, which |s wider than the words cause of action or ''reliefs. Object of Rule 1 of Order 2 is to PREVENT FURTHER LITIGATION BETWEEN THE PARTIES TO THE SUIT. The Sub-rules (2) and (3) of the Rule 2 of Order 2, C.P.C. do not permit plaintiff to left out any of the relief, which he could have claimed on accrual of the cause of action and if plaintiff omits to sue in respect of any portion of his claim, he is precluded from bringing second suit. Once the suit is filed by the plaintiff, the plaintiff is prohibited from amending the pleadings in any manner without leave of the Court under Order 6, Rule 17. C.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions to avoid more than one suit some unavoidable circumstances permits involvement of same issues in two suits. Those suits are like cross suits or where law permits second suit specifically like withdrawal of suit with permission to file fresh suit or due to accrual of cause of action or entitlement for the relief/ reliefs subsequent to filing of earlier suit to the plaintiff and plaintiff had no right to claim relief at the time of filing of earlier suit and where Court either cannot grant relief after taking note of subsequent event or the Court refuses to entertain subsequent event for moulding the relief. Such suits are maintainable and are permissible. Even where such suits are lawfully maintainable still law, (under) Section 10 prohibits simultaneous trial of issue and if, due to any reason, trial of suit proceeded, the decision given on issue which is earlier in time has been made final by Section 11, C.P.C. When specific provisions of law prohibits trial of even maintainable suit., then interpreting Sections 10 and 11 of the C.P.C. as a permissive provision making maintainable two suits simultaneously will be against the legislative intention. 25. It is immaterial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or ever. Litigant after start of litigation cannot avoid its lawful and final decision nor have right to prevent Court from deciding the dispute as it is not convenient to them at this point of time and to keep the dispute alive for adjudication by the Court at the time which suits them or suits them by changing their capacity, plaintiff to defendant or vice versa. The proposition is in consonance with number of provisions of the Civil Procedure Code, which are enacted to avoid multiplicity of the proceedings by the parties in the Court. 26. It will also be necessary to consider the alleged claim of the petitioner that he got the possession of the land in dispute from Supardgidar on 11-2-1990. It will be necessary to recapitulate facts once again. In Suit No. 49/83, petitioner admitted that the possession of the land was given to the non-petitioners in the year 1981-82. If the petitioner got the possession of the land in dispute during Suit No. 49/83 only option which was available to the petitioner was to bring this fact in the knowledge of the Court as subsequent event so that the Court could have passed the order or decree after hearing the defendants so that alleged subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff about satisfaction of his suit claim is only an admission of plaintiff in his own favour, which is neither an evidence nor it can be used in any manner to establish his any right. The alleged claim of satisfaction of the suit claim if not resulted into, decree as provided under Order 23, Rule 3, C.P.C., can amount only unconditional withdrawal of the suit by the plaintiff and the plaintiff, in any capacity, will not be entitled to reagitate the issues, which were Involved in his suit. The plaintiff is not entitled to put words of satisfaction of his suit claim in the mouth of the unwilling and contesting defendant to get mere disposal of his suit Instead of decision of the suit so that, he may prolong the dispute after wasting Court's and other party's valuable time and money resulting into multiplicity of Court proceedings as done in this case by setting up a compromise of 1962 in the year 1983, when the petitioner though proper to file Suit No. 49/83 despite the fact that, litigation, which petitioner alleges was compromised itself pending till the year 1969. There was no reason for not producing alleged agreement dated 22-9-1962 before the Board of Revenue for g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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