cra5.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISIN APPLICATION NO.5 OF 2011 BHARTI KESHAV SHINDE. ...APPLICANT. VERSUS RAMRAO SHRIPATI SHINDE THROUGH GPA SHAM RAMRAO SHINDE. ...RESPONDENT. ... Advocate for Applicant(s) : Mr. Sonpethakar P.N. Advocate for Respondent(s) : Mr. Kulkarni Sudhir D. ... CORAM : S.S. SHINDE,J. Dated: August 23, 2011 PER COURT: 1. This civil revision application has been filed challenging the order dated 29th October, 2010 passed by the Joint C.J.S.D., Paithan below Exh.22 in RCS NO.84/2009. 2. The learned Counsel appearing for the applicant cra5.11 2 submits that earlier RCS NO.70/2007 was filed by the respondent / plaintiff for the same cause of action. The said suit came to be dismissed in default. The respondent herein filed another RCS NO.84/2009 for the same cause of action. According to the learned Counsel for the applicant, in the earlier suit, the relief which was sought by the respondent - original plaintiff was for declaration of ownership and perpetual injunction. The said suit came to be dismissed in default. The learned Counsel for the applicant invited my attention to the prayers in the earlier suit and also took me through the pleadings in the said plaint and submitted that the second suit i.e. R.C.S. NO.84/2009 has also been filed for the same cause of action wherein the plaintiff is claiming relief of declaration of ownership and mandatory injunction. According to the provisions of Order IX, Rule 8 and 9 of the Code of Civil Procedure, no second suit can be entertained. It was open for the plaintiff to file an application for restoration of the earlier suit. However, it has not been done. The learned Counsel for the applicant cra5.11 3 invited my attention to the pleadings in the plaint which has been filed subsequently and contended that the second suit has been filed for the same cause of action. The learned trial Court has not considered the submissions of the applicant and rejected the application without assigning any reasons. According to the learned Counsel for the applicant, even the necessary parties are not joined as defendants in the said suit and, therefore, on both the counts the second suit is not maintainable. In support of his contention, the learned Counsel for the applicant placed reliance on the reported judgments of the Supreme Court in cases of Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors. [2007(4) CIVIL COURT CASES 731 (S.C.)], Kamala & Ors. vs. K.T. Eshwara Sa & Ors. [2008(30 CIVIL COURT CASES 681 (S.C.), Popat and Kotecha Property vs. State Bank of India Staff Association [2005(3) CIVIL COURT CASES 350 (S.C.) and also a decision of Himachal Pradesh High Court in case of Piar Singh vs. Sarju Singh & Anr. cra5.11 4 [2000(2) civil court cases 522 (H.P.)] , and submitted that if earlier suit is dismissed in default, fresh suit is not maintainable on the same cause of action under Order IX, Rules 8 and 9 of the Code. Therefore, according to the learned Counsel for the applicant, the second suit filed by the respondent / plaintiff should not have been entertained by the trial Court. 3. On the other hand, the learned Counsel Counsel for the respondent submitted that the second suit has been filed for different cause of action. Earlier, there was prayer for perpetual injunction. However, in second suit, there is prayer for mandatory injunction. Therefore, it cannot be said that second suit has been filed for same cause of action. The learned Counsel for respondent invited my attention to the provisions of Order IX, Rules 8 and 9 of the Code and submitted that under O. IX, R. 9 of the Code, another suit can be filed if there is different cause of action. So far as Order VII, Rule 11(d) of the Code is concerned, the cra5.11 5 learned Counsel for respondent invited my attention to the provisions of Rule 11(d) and submitted that only on the ground of limitation and other grounds such suit can be rejected. However, merely because necessary parties are not joined to the suit, that cannot be a ground for rejection of the suit. In support of his contention, the Counsel for respondent placed reliance on the reported judgments in cases of Prem Lala Nahata & Anr. vs. Chandi Prasad Sikaria [2007(2) SCC 551], and Kamala & Ors. vs. K.T. Eshwara Sa & Ors. [2008(12) SCC 661]. 4. I have given due consideration to the rival submissions of the parties. The relief which was claimed in the earlier suit was for perpetual injunction and the suit was dismissed in default. It appears that, in the mean time, the original defendant / applicant herein made construction on the encroached portion and that gave rise for cause of action to file another suit for mandatory injunction. Therefore, in both the cra5.11 6 suits, the cause of action is different. Therefore, at the stage of recording of evidence, filing of such application by the applicant is a belated attempt, though the learned Counsel for the applicant submits that at any stage such application can be filed. However, I find that the second suit has been filed for different cause of action and the said suit can be maintained under Order IX, Rule 9 of the Code. Therefore, there is no substance in the contention of the applicant that another suit was for the same cause of action. So far as the second contention of the learned Counsel for the applicant that necessary parties are not joined as defendants in the suit is concerned, the same is answered by the authoritative pronouncement of the Supreme Court in case of Prem Lala Nahata & Anr. (supra). 5. Therefore, in my opinion, no case is made out for exercise of revisional jurisdiction. Hence, Civil cra5.11 7 Revision Application stands rejected. Interim relief stands vacated. Any observations made herein above are for the purpose of deciding the present revision application only. [ S.S. SHINDE ] JUDGE. ... PLK/*