IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 88 of 2008 Date of Decision : 5.10.2009 Ramesh Chand & Anr. ……Appellants. Versus: Raghunath Singh (dead) through his LRs Mohinder & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. Ramesh Sharma, vice Mr. N.K. Thakur, Advocate. For the respondents. Mr. Ajay Sharma, Advocate. Sanjay Karol, J. (Oral). The plaintiffs have filed the present appeal against the concurrent findings of facts recorded by the Court below. The plaintiffs’ Civil Suit No. 319/1998, titled as Ramesh Chand & Ors. vs. Raghunath Singh, was dismissed by the Civil Judge (Sr. Division), Jawali, Distt. Kangra, H.P. in terms of judgment and decree dated 30.8.2005 and plaintiffs’ Civil Appeal No. 132- J/XIII-2005 titled as Ramesh Chand & Ors. vs. Raghunath Singh stands dismissed by the District Judge, Kangra at Dharamshala in terms of judgment and decree dated 30.11.2007. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Plaintiffs had prayed for a relief of declaration to the effect that they are the owners in possession of suit land comprised in Khata No.14, Khatauni No.28, Khasra No. 79, measuring 0-52-55 hectares situated in Mohal and Mauza Jawali, Tehsil Jawali, Distt. Kangra, H.P., and that the revenue entries showing the defendant as owner in possession and mutation No. 65 dated 25.3.1954 is illegal and not binding on them. Consequently, the relief of injunction restraining the defendant from interfering with the plaintiffs’ possession was also prayed for. The suit was resisted by the defendant inter alia on the ground that the same was barred under the provisions of Order 2 Rule 2 CPC. The trial Court, based on the pleadings of the parties, framed the following issues:- 1) Whether the plaintiff is owner in possession of the suit land and entries to the contrary in favour of the defendant are wrong and incorrect, as alleged? …OPP 2) Whether the Mutation No.65, dated 25.3.1954 has illegally been effected, as alleged? ….OPP 3) Whether the suit is not maintainable? …OPD 4) Whether the plaintiff has no locus-standi to sue? …OPD 5) Whether the plaintiff has no cause of action? ….OPD 6) Whether the plaintiff is estopped by his act and conduct? …….OPD 7) Whether the suit is hit under provisions of Order 2 Rule 2 CPC? ..OPD 8) Relief.” 3 Issues No. 1 to 7 were answered in the negative, but however, while deciding issue No.7, the trial Court also held that the suit is barred under the provisions of Order 9 Rule 9 CPC. The Courts below have held that the original plaintiff had sold the suit land and delivered the possession of the same to the defendant whose name was correctly recorded in the revenue record. While deciding the question as to whether the suit was barred under Order 9 Rule 9 CPC, the first Appellate Court has held as under:- “The defendant has produced in evidence the copy of order 21.2.1995 passed in Civil Suit No. 209/91. PW-1 Ramesh Chand in his examination-in-chief had stated that plaintiff had filed a civil suit in the court at Nurpur against the defendant. The defendant is his ‘Massar’ and as such on the assurance made by the defendant not to make interference in the suit land, the case was not prosecuted by the plaintiff. DW-1 has testified that case was filed by the plaintiff which was dismissed. It is revealed from the title of civil suit No. 209/91 that original plaintiff Nasib Singh had filed a civil suit against the defendant and two other brick kiln owners in respect of the suit land and the same reliefs had been claimed in said suit. The suit was instituted on 18.6.1991. In the said civil suit the cause of action must have been pleaded by the plaintiff of the date prior to the institution of suit i.e. 18.6.91. In the present suit the cause of action to file the suit has been pleaded to have been accrued on 17.10.98. Neither the civil suit No.209/91 was simplicitor suit for injunction nor the present suit is simplicitor suit for injunction. In the prior suit the plaintiff had also challenged the sale and correctness of the mutation and had claimed declaration that he be declared owner in possession of the suit land and similar 4 reliefs have been claimed in the present suit. The accrual of cause of action is not the whim and fency of the plaintiff, but it is bundle of facts which give rise to cause of action to institute the suit and as such the cause of action cannot be created by the plaintiff in his favour to file the suit in respect of same reliefs in such a suit. Apart, it is revealed from the order dated 21.2.95 passed in Civil Suit No. 209/91 that neither the plaintiff nor his counsel was present. Sh. P.S. Jaggi, Advocate was present for defendant No.1. The Civil suit was called thrice in the day, but none appeared for the plaintiff, hence, the suit was dismissed in default of the appearance of the plaintiff and as such it stands proved that order Ext.D2 dated 21.2.1995 was passed under Order 9 Rule 8 CPC. As per the provisions contained under Order 9 Rule 9 CPC, where a suit is partly or wholly dismissed under Order 8, the plaintiff would be precluded from bringing a fresh suit in respect of the same cause of action, but the plaintiff may apply for an order to set the dismissal aside and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise it thinks fit and shall appoint a day for proceeding with the suit. The plaintiff although has styled the institution of the present suit on different cause of action, but without result, because same reliefs had been claimed in the previous suit, as a result of which the cause of action arose to file the earlier suit as well as the present suit on the same date, as a result of which the suit filed by the plaintiff is also not maintainable, in view of the bar created under Order 9 Rule 9 CPC.” Learned counsel for the appellants could not show as to in what manner the said findings were either erroneous, perverse, illegal or not borne out from the record. 5 Both the Courts below were rightly of the view that the plaintiffs subsequent suit based on the same cause of action is not maintainable. It is also not the plaintiffs case that they had moved an application for restoration of the earlier suit. Hence, I see no infirmity, impropriety or perversity in passing of the impugned judgment and decree. No substantial question of law arises for consideration in the present appeal. The same is consequently dismissed, so also the pending application. ( Sanjay Karol ), Judge. October 5, 2009 (rana)