IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 113 of 1998. Date of decision: 19.11.2009 Smt.Niranjan Kaur …. Appellant Versus Sh. Pritam Singh and another ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellant: Shri Bimal Gupta, Advocate. For the respondents: Sh.K.D.Sood, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) By means of this judgment, the appeal and the Cross Objection are being disposed of. Briefly stated the facts of the case are that the plaintiff-appellant is the real sister of the defendants- respondents. She initially filed a Civil Suit No.68/1/89 on 31.3.1989. The plaint in that suit has been exhibited as Ext.PA in the present suit. In that suit, she had prayed that a decree for declaration be passed to the effect that she is entitled to 1/3rd share in the land of her father being one 2 of his legal heirs and that the Will dated 5.9.1988 set up by her brothers-defendants is fraudulent, false, fabricated and manufactured by them. This suit was dismissed as withdrawn on 14.6.1989. The order dated 14.6.1989 reads as follows:- “14.6.1989 Present:Sh.S.R.Sharma, Advocate for the plaintiff. Sh.T.S.Shah, Advocate, for defendant. Plaintiff’s counsel Sh.S.R.Sharma wants to withdraw the suit on behalf of plaintiff. Defendants counsel Sh.T.S.Shah, Advocate has no objection for withdrawing the present suit. Statement of Sh.S.R.Sharma, Advocate recorded. The suit is dismissed as withdrawn. File after completion be consigned to the Records. Sd/- SJIC (II)” A bare perusal of this order shows that the plaintiff did not reserve any right or liberty to file a fresh suit with regard to the same property. The plaintiff thereafter filed the present suit again claiming the same relief. In para 5 of the plaint, the plaintiff alleged that she had filed the earlier suit in which also she had challenged the Will dated 5.9.1988. Since during the pendency of the suit, the Assistant Collector, 2nd Grade, Poanta Sahib vide his order dated 7th June, 1989 had sanctioned the mutation 3 of inheritance in accordance with the law of succession, therefore, she had withdrawn the suit. The defendants in the present suit raised an objection to the maintainability of the suit. The learned Trial Court held that the second suit was not maintainable and was barred under the provision of Order XXIII Rule 1(4) of the CPC. On merits also the learned Trial Court held that the Will had been proved in accordance with law. The plaintiff-appellant filed an appeal before the learned Additional District Judge, Sirmaur. The learned Additional District Judge vide impugned judgment upheld the finding of the Trial Court that the suit was barred under the provisions of order XXIII Rule 1(4), CPC. However, on merits he held that the Will had not been proved and was surrounded by suspicious circumstances. Both the Courts below have also held that the plaintiff being a daughter could not be a member of the co-parcenary in respect of the suit land which is admittedly agricultural land. Aggrieved by the said judgment of the learned Additional District Judge, Sirmaur the present appeal has been filed which was admitted on the following questions of law:- 4 “1. Whether the suit property, agricultural land was coparcenary property or absolute property in the hands of late Sh.Kapoor Singh? 2. Whether the suit is barred under Order XXIII Rule 1(4)(b), CPC? 3. Whether the learned Additional District Judge has misconstrued, misinterpreted the pleadings and other material on record and the view taken by him is not possible on the basis of material on record?” Cross Objection No.222 of 1998 has also been filed by the defendants challenging the finding of the learned Lower Appellate Court with regard to the Will. In my opinion, it is not necessary to decide questions No.1 and 3 since in my opinion both the Courts below have rightly held that the second suit itself was barred under the provisions of Order XXIII Rule 4 which read as follows:- “(4)Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.” A perusal of this Rule shows that a plaintiff who withdraws or abandons his suit in terms of Order XXIII Rule 5 1(4) is barred from filing a fresh suit unless he has taken permission as contemplated in sub-rule (3) of Rule XXIII. Admittedly no such permission was taken. The order whereby the previous suit was permitted to withdraw has been quoted here-in-above. It clearly shows that the plaintiff never reserved any right to file a fresh suit. Sh.Bimal Gupta, learned counsel for the appellant has urged that the plaintiff withdrew the first suit only because the revenue authorities had decided the mutation proceedings in her favour and since the mutation had been entered in her favour also, she withdrew the suit. He further submits that the second suit is not barred and in fact a fresh cause of action arose in favour of the plaintiff when the Collector set aside the order of the Assistant Collector and directed that the mutation of inheritance be entered in terms of Will in question. I am unable to accept the contention of Sh.Gupta. In the first suit also, the plaintiff had prayed that she be declared to be owner of 1/3rd share of the land of her father and that the Will set up by the defendants be declared to be null and void since it is a forged and manufactured document. The question with regard to the validity of the Will and the shares of the parties could 6 not been settled in revenue proceedings and could have only been settled before the civil court. It may be true that the Assistant Collector decided the mutation proceedings in favour of the plaintiff but this did not mean that the plaintiff should have withdrawn her suit. Even if she felt that she should withdraw the suit, she in her application for withdrawal or in her statement should have clearly stated that the suit is being withdrawn on account of the fact that in revenue proceedings, the matter has been decided in her favour and she should have also sought liberty of the Court to approach the Court again if in appellate proceedings, the revenue authorities decided the matter against her. Having neither sought or obtained leave of the Court to file a fresh suit, in my opinion, the case is squarely covered by the provision of order XXIII Rule 1(4) of the CPC and the plaintiff was not entitled to file the fresh suit. In view of the fact that I have held that the suit itself is not maintainable and question number No.2 has been decided in favour of the defendants and against the appellant, it is not necessary to give findings on the other questions of law. The appeal is accordingly 7 dismissed. Cross Objections are disposed of as having become infructuous. No order as to costs. November 19, 2009 ( Deepak Gupta ) (m) Judge