•%.' c ^ ^ PETITIONER Defendant No.l lii'1 ~& ^^ ^^'..- '^••" IN THE HIGH COURT OF JUDICATURE AT BILASPUR CIVIL REVISION N0. (3^ OF 2008 §toi Madari, son of Rambharosa Kewat, aged about 67 years, ^(yl' . _ . ' . Occupation- Agriculturist, resident of Kawarjdha, District Kabirdham (CG). i^<fc,.;- ^V ^"•Vfol'-K" ^^~^y>"... ^.^^'" c,ftft •',' ^Sf^ Vs RESPONDENTS Plaintiff Defendant No.2 to 13. Budhiya Bai, widow of Gariba Kewat, aged about 75 years, resident of Near Petrol Pump on Bilaspur Road, Kawardha, Tehsil Kawardha, Kabirdham. District 2. Ramnihora, aged about 50 years, son of Parsadi Kewat, occupation- agriculturist, resident of Khudiya, Tehsil Lormi, District Bilaspur (CG) 3. Baliram, aged about 40 / years, son of Pa,rsadi Kewat, resident of Khudiya, Tehsil Lormi, "\ r^£«-J District Bilaspur (CG) 4. Chhedilal, aged about 35 years, son of Parsadi Kewat, resident of Khudiya, Tehsil Lormi, District Bilaspur (CG) 5. Gonda Bai, aged about 60 years, daughter of Parsadi Kewat, resident of Khudiya, Tehsil Lormi, District Bilaspur (CG) 6. Ajra Bai, aged abou't 47 years, daughter of Parsadi Kewat, resident of Kawardha, District Kabirdham (CG) 7. Bismat Bai, aged about 45 years, daughter of Parsadi Kewat, resident of Khudiya, Tehsil Lormi, District Bilaspur (CG) 8. Jugan Bai, aged about 75 years, widow of Parsadi Kewat, resident of Khudiya, Tehsil Lormi, '"> ''>" ^e^j District Bilaspur (CG)' 9. Dashrath, aged about 35 years, son of Mangal Kewat, resident of Khudiya, Tehsil Lormi, District Bilaspur (CG) lO.Itwari, aged about 40 years, son of Mangal Kewat, resident of Khudiya, Tehsil Lormi, District Bilaspur (CG) ll.Rajo Bai, aged about 45 years, wife of Madhukar Kewat, resident of Nihalpur, Tehsil Pandariya, District Kabirdham (CG). 12-Rajanbai, aged abou.t 42 years, wife of Kusduram, resident of Dongariya, Tehsil Lormi, District Bilaspur (CG) 13-State of Chhattisgarh, through the Collector, Kabirdham. •E -•^- CIVIL REVISION UNDER SECTION 1150F THE CODE OFCIVIL PROCEDURE. 1908 3^V W ft-fi'* wi sn^r iniiii L ET""T~" }/ WHCtr »>*11<!h 73f "4l'4l<yl^|, gitil'y'ie, isxniyy ..G.:...S......^±:J..^..l._ „ '•••-••—•••---••:-j-^ 200 8- 3TI^?T 'TTOr (1°l[j«<<EI) t^iiwofw 3iA?t S.B. Hon'bie Shri Justice N.K. Aad 16.03-2010 Shri Malay Shrivastava, ceun^ Shri Malay Kumar Bhaduri, Shri Ajay Mishra, counsel for Shri Sameer Behar, Panel l-1eard. Feeling aggrieved and 09-2008, the instent revision h^ applicanVdefendant No.1. Facts briefly stated are as Non-applicant No.l/plaintiff relief of declaration, partition, sepaj permanent injunction bearing CMI suit, non-applicant No.l/plaintifF. the suit on 23-03-2007. Vide orderl A-6), the plaintiff was allowed t<j permission to file fresh suit. (Annexure A-7) has been flled which it has been pteaded ttiat the| obtained by the applicant by applicant No.1. Admittedly, the second suit is| action between the same parties applicant No.1 flled an application fflet bear|ig an41 *l<lffl4)-< 'WRTf 4 feIZt <[a|«(l< ^? aifipT sil^Sl rwal ^el for the applteant. cc|unset for non-applicanl No.1. (lon-applicants No. 2 to 12. La^yer for the Stata. dissatilsfied with th®order dated 11- i^s been preferred by the under: e^rlier in^ituted a suit elalming ^ate possesston smd also fer ; No.25-A/20)6. tn the said a petition for withdrawal of |dated 28-03-2(X)7 (Anrrexure withdraw the suit without fhereafter, Uie present suit Civil Suit No.13-A/2008 in leartier withdrawal erder was pla^ng fraud upon plaintiff/non- Sluit 1 based on the same cause of claiming same rsliefe. Non- +der Order VII Rule 11'(a) & -HG—78 ^^ -4i'4iy<i, atily-iis, [s)cliy^< *liMWl tta*iich •*-••'——••• •••^•^200 ^ 3n^ITPW ('^fyi^q) 311^1 VI R;-l1'=b 'WT 3TT^9T sh*i(^ TCIIW ^ifet 311^1 ol ordek" (d) read with Section 1 1 of C.P.C. fer not maintainabte. Learned Trial Court vlde application holding that ttie eariier merte and, ttierefore, the provisionj C.P.C. are not attracted. Learned counsel for the undisputediy, the suit is baircd in vtei) 23 Rule 1 as the suit has been with^ file fresh suit on the same cause of On the other hand, learned submite that the withdrawal order w4s by playing fraud upon the non-applii] the applicant is raising here, has not| Court. Since the suit was dismissect said that tt has been decided on merH|s rightly held that the suit Is not barrep and rightly dismissed the applicati|on deserves to be upheld. 1 have heard leamed counsell the order impugned. A bare perusal of para 2 of| applicant underOrder VII Rute 11 (a)| of C.P.C.,would reveal ttiat the apppi non-maintainabitity of the suit in viev^ uuifhnirt permi<ision <rf ttie Court. Btt impugned, djsmissed the ^uit was not dismissed en fe contained in Section 11 q»l<lT<*1<fl*1^fl^lt ^ 'fe^ '<fSt|^)< ^sTfinan^i dismissal erf present suit as would submit that ^/ of sub rule (4)(b) of Orcter Irawn without pennission to a«ion. co|insel for non-appticarrt No.1 ^s obtained by the appHcant tant No.1. The point which been raisect before the trtal as wlthdrawn, tt cannot be and leamed trial Court has by princlpla of resjudirata i, and the orcter pa%ed for the parties, and perused |the applteation filed by &ie |and (d) read wlh SecUon 11 licant has raised the plea of of the withdmwal of the suft it appears ttiat tto same is -HC—78 's'sEr'^iraRW, 8>ti1y<i<o, fsiciiyy . a. K.^^J.^1 *11*1CTI «t*11<*i WI,200g sn^fl ipRT (•jqt3«|^T) sn^rw l<"i TWT STI^T^RN? Kw ^aiw ^ife( SIT^I 'i- «bl<lf<-l<fl-< ll^fif^ffeA <pi|<(lt «(?3TfgT sn^ST neither raised by the applicant duifng course of argument nor considered by the Ceurt below which| needs cmsideration. In view <rf above, the orcter p|assed by the Court below is setaside. The matter is remttted ba the application (Annexure A-8) i.e. Rule 11 (a) & (d) read with Sectien the ground taken in para 2 of the a| law. Since the matter is very old, it i^ expected that the trial Court shatl decide the apptication within a ^ date of receipt of this order. tt is fijrther clarNied at this Couit has not expressed any opinion on m^ Interim reliefgranted earlierst^ndsvacated. sk to the trial Court to decide application under Order Vtl 11 ofthe C.P.C., cansidering aplication in aceorctance writh eriod of two months from the ritsofthematter. Sd/- N.K.Agan*/a! "T^^Judge L±^rftn'~-—--