1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 547 of 2009 Date of Decision: 22nd April, 2010 Ram Saran Appellant Versus Hira Lal and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.G.D.Verma, Sr. Advocate with Mr. B.C.Verma, Advocate. For the respondent: Mr. Janesh Gupta, Advocate.. Sanjay Karol, J. (Oral) This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiff assailing the concurrent findings of fact. Heard learned counsel for the parties and perused the record. The appellant is the plaintiff and respondents are the defendants. Shri Ram Saran-plaintiff executed a registered sale deed dated 14.8.1995 (Ext.PW-1/B) for a consideration of Rs.10,000/- in favour of defendant No.1 Shri Hira Lal. The possession of land was also handed over to him. Based on the same, name of defendant No.1 was mutated in the revenue record vide mutation No.426 (Ext.PW-1/B). On 18.3.1996 plaintiff Whether the reporters of Local Papers are allowed to see the Judgment? 2 filed Civil Suit No.38/1 of 1996, titled as Shri Ram Saran vs. Shri Hira Lal. The suit was for declaration and injunction to the effect that the sale deed executed by him in favour of defendant No.1 is an outcome of fraud, misrepresentation etc. In the said suit, the trial Court framed the following issues:- “1. Whether the plaintiff is owner in joint possession of the suit land as claimed? OPP 2. Whether the sale deed dated 14.8.1995 is the result of fraud, misrepresentation and undue influence, as alleged? OPP. 3. Whether the plaintiff is entitled for the relief of declaration, as alleged? OPP. 4. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP 5. Whether the suit is not maintainable? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD. 7. Whether the plaintiff has suppressed the material facts? OPD. 8. Whether the plaintiff is estopped from filing the present suit by his own act, conduct and deed etc? OPD.” The suit was dismissed in terms of judgment and decree dated 31.3.2000 passed by Sub Judge Ist Class (2), Shimla, (Ext.PW-1/C). Plaintiff’s appeal assailing the same also stood dismissed in terms of judgment and decree passed by District Judge, Shimla, in Civil Appeal No. 56-S/13 of 2000 (Ext.PW-1/D). This Court in RSA No.178 of 2002 upheld the aforesaid judgment and decree in terms of decision dated 5.7.2002. The judgment is reproduced in toto as under:- “Heard learned counsel. 3 A suit was filed by the appellant/plaintiff for declaration and injunction. Declaration sought was regarding the sale deed executed by him in favour of the respondent. This sale deed is dated 14.8.1995 and was for consideration of Rs.10,000/-. This was the outcome of mischief having been done by the respondent and his (appellant’s) brother. Thus it was to be challenged on the ground of fraud, mis- representation etc. Trial court after conclusion of the trial, dismissed the suit. Appellant when challenged the decree of the trial court in appeal, was unsuccessful. Hence, this second appeal by him. Learned senior counsel submitted that both the courts below have gravely erred in ignoring the fact that the appellant was a person under legal disability and could not have executed the sale deed in question. According to him, before as well as at the time of the execution of the sale deed and till date, appellant is suffering from mental disease and as a consequence of it is a person under disability. Both the learned courts below on examination of evidence produced during the course of trial and after considering all the relevant facts have concurrently negatived this plea urged on behalf of the appellant. After going through the evidence to which a reference was made on behalf of the parties, I find no question of law much less substantial question of law involved in this appeal calling for interference. Findings recorded by the courts below are concurrent findings of fact in this second appeal. Faced with this situation, learned senior counsel submitted that appellant may be permitted to withdraw the suit out of which this appeal had arisen, reserving liberty to him to file fresh suit on the same cause of action. This submission is based on the plea that the 4 appellant who was a person under legal disability could not have maintained the suit himself and could only sue through his next friend. So far plea regarding leave being allowed for withdrawal is concerned, Mr. Neeraj Gupta submitted that he has no objection to its being allowed. However, he vehemently opposed the prayer to grant liberty to the appellant for maintaining a fresh suit on the same cause of action, particularly when there is no technical flaw or other subsisting ground on which this prayer could be allowed. After having considered the submissions urged on behalf of the parties as aforesaid, this prayer cannot be allowed. Appellant had filed the suit himself as also the first appeal as well as this second appeal. When this appeal is filed by the appellant himself, argument addressed on his behalf that he was and continues to be a person under legal disability has been raised simply to be rejected. No other point is urged. In view of the above discussion, this appeal is dismissed at admission stage.” Thus the first round of litigation between the parties came to an end. However, on the basis of the very same cause of action, on 21.1.2003, plaintiff filed a fresh suit with respect to the very same subject matter on the ground that the sale deed executed by Shri Ram Saran-plaintiff was in a state of unsoundness of mind. This suit was filed through his mother Smt. Besru Devi. The suit was contested by defendant No.1. According to defendant No.1, defendant No.2, who remained ex parte had prompted the 5 filing of the suit as he had wanted to grab the property. In this suit, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled for the decree of permanent prohibitory injunction, as prayed for? OPP 2. Whether the suit is hit by the principle of constructive res judicata, as alleged? OPD. 3. Whether the suit is not maintainable, as alleged? OPD. 4. Whether the plaintiff has no cause of action, as alleged? OPD. 5. Whether the plaintiff is estopped from filing the present suit, as alleged? OPD. 6. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD. 7. Whether the suit is hit by principle of Order 2 Rule 2, CPC as alleged? OPD. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 9. Whether this Court has no jurisdiction to try and entertain the present suit, as alleged? OPD. Plaintiff’s suit was eventually dismissed by the trial Court in terms of judgment and decree dated 26.9.2008 passed by Civil Judge (Junior Division), Court No.4, Shimla, in Civil Suit No.4/1 of 2003. Even the lower Appellate Court dismissed the plaintiff’s appeal in terms of its judgment and decree dated 26.8.2009 passed by learned District Judge, Shimla, in Civil Appeal No.70-S/13 of 2008. Both the Courts below have rightly dismissed the plaintiff’s subsequent suit. It is an abuse of process of law. Having failed in first round of litigation, on the basis of very same cause of action for which no liberty was granted by this Court, plaintiff could not have filed a subsequent suit. In 6 fact plaintiff has been taking contradictory pleas. In the first suit, the challenge to the sale deed was on the ground that the same is a result of fraud, misrepresentation and undue influence and in the subsequent suit, the challenge is on the ground of unsoundness of mind. That apart the suit was not maintainable in law even on merits. The Courts below rightly held that the plaintiff failed to prove the mental ill- health. The evidence of Dr. Ravi Sharma (PW-4) does not prove the same. The findings in the earlier judgments were conclusive on all issues. No question of law much less a substantial question of law arises for consideration in the present appeal. The same is accordingly dismissed. However, there shall be no order as to costs. 24th April, 2010 (Sanjay Karol) (C) Judge.