R.S.A. No. 2548 of 2004 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2548 of 2004 (O&M) Date of Decision : 27.1.2009 Ram Kaur .......... Appellant Versus Surinder & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Rahul Chhatwal, Advocate for the appellant. Mr. H.S. Hooda, Sr. Advocate with Mr. Amandeep Singh, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 6115-C of 2004 This is an application under Order 41 Rule 27-A read with Section 151 of the Code of Civil Procedure for leading additional evidence. The learned counsel for the appellant has moved this application on the plea that the appellant is illiterate and rustic lady and had no knowledge of documents showing that she was minor at the time of alleged agreement, which was said to have been executed in favour of the appellant-plaintiff. The learned counsel for the appellant, thus, prays that by way of additional evidence permission be granted to place on record the birth certificate of the appellant. R.S.A. No. 2548 of 2004 (O&M) -2- On consideration of the matter, I find no force in this contention. The appellant has been not-suited on the ground that suit filed by the plaintiff-appellant was barred under Order 23 Rule 1 of the Code of Civil Procedure. The evidence now sought to be produced was well within her knowledge and otherwise also is not necessary for pronouncement of judgment in this case. The application being without merit is ordered to be dismissed. R.S.A. No. 2548 of 2004 This regular second appeal is directed against the judgment and decree dated 23.3.2004 passed by the learned lower appellate Court vide which suit filed by the plaintiff-appellant for declaration has been ordered to be dismissed being barred under Order 23 Rule 1 of the Code of Civil Procedure. The plaintiff brought a suit for declaration that she was owner in possession of 1/3rd share of land by way of inheritance in view of the decree suffered by her in favour of predecessor-in-interest of defendant- respondents was outcome of fraud and misrepresentation and not binding on the plaintiff. The learned trial Court decreed the suit. However, the learned lower appellate Court keeping in view the fact that the defendant- respondents were minor, allowed them to amend the written statement. By way of amended written statement, plea was raised that the suit filed by the plaintiff-appellant was barred under Order 23 Rule 1 of the Code of Civil Procedure as on earlier occasion she had filed two suits one with Jawahar R.S.A. No. 2548 of 2004 (O&M) -3- Singh and the second individually in her independent right. The suit filed by the plaintiff-appellant was got dismissed as withdrawn. The learned lower appellate Court, therefore, has reversed the judgment and decree passed by the learned trial Court by holding that the suit filed by the plaintiff-appellant was barred under Order 23 Rule 1 of the Code of Civil Procedure as no permission for filing fresh suit on same cause of action, was taken while withdrawing the previous suit. Mr. Rahul Chhatwal learned counsel appearing on behalf of the appellant contends that the following substantial question of law arises for consideration by this Court in this appeal :- 1. Whether suit for possession of the suit property would be barred under Order 23 Rule 1 of the Code of Civil Procedure when the earlier suit filed was a suit for declaration simpliciter particularly when the plaintiff was in possession of the suit property ? The learned counsel for the appellant in support of this contention vehemently contends that in the previous suit the plaintiff had merely sought declaration that she was owner of the property in dispute, whereas the second suit was to challenge the judgment and decree alleged to have been obtained by fraud and misrepresentation. The contention of the learned counsel for the appellant is that cause of action in both the suits was different and, therefore, the learned lower appellate Court by wrongly applying the provisions of Order 23 Rule 1 of the Code of Civil Procedure non-suited the plaintiff-appellant. On consideration of the matter, I find no force in the contention R.S.A. No. 2548 of 2004 (O&M) -4- raised by the learned counsel for the appellant. It may be noticed that in the previous suit the plea that the decree was outcome of fraud and misrepresentation was available to the plaintiff-appellant rather specific plea was raised in the plaint that the decree was not binding on her right. The suit filed was withdrawn without permission to file fresh one on the same cause of action. The learned lower appellate Court was, therefore, justified in holding that the suit filed by the plaintiff-appellant was barred under Order 23 Rule 1 of the Code of Civil Procedure and reversed the decree. The substantial question of law as raised by the learned counsel for the appellant deserves to be answered against the appellant and it is held that the learned lower appellate Court rightly non-suited the appellant- plaintiff by invoking the provisions of Order 23 Rule 1 of the Code of Civil Procedure. Dismissed. 27.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE