RSA No.249 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.249 of 1987 Date of Decision: 11.02.2010 State of Punjab .……Appellant Versus Ravinder Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vivek Chauhan, AAG, Punjab for the appellant. Mr. M. S. Khaira, Sr. Advocate with Mr. B. S. Sewak, Advocate for respondents. L. N. MITTAL, J (ORAL) State of Punjab has filed the instant second appeal having remained unsuccessful in both the Courts below. State of Punjab filed suit for possession of suit portion of State house No.27 situated in Chhoti Baradari, Patiala as detailed in the plaint and shown in the site plan Annexure A annexed with the plaint. The plaintiff alleged that plaintiff is owner of the State house No.27 including the suit portion thereof and defendants are illegally occupying major portion of the house, which is in dispute. Defendants are trespassers in the suit property. The plaintiff filed eviction application under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (in short, the Eviction Act). The said eviction application was dismissed by Collector vide order dated 0704.1976 and the said order was affirmed in appeal by the Commissioner vide order dated 08.03.1979. The said orders are RSA No.249 of 1987 -2- illegal. The plaintiff accordingly sought relief of possession of the suit property, reserving right to file separate suit for recovery of mesne profits. Defendants contested the suit and inter alia pleaded that the plaintiff had earlier filed civil suit No.414 T/15.01.1969 which was dismissed as withdrawn vide order dated 05.12.1973 without reserving right to file fresh suit on the same cause of action and, therefore, the instant suit is barred by Order 23 Rule 1 of the Code of Civil Procedure (in short, C.P.C). It was also pleaded that ejectment application filed by plaintiff under the Eviction Act was dismissed by Collector as upheld by the Commissioner. The plaintiff filed civil writ petition No.902 of 1980, which was dismissed by this Court (High Court) vide order dated 06.05.1981. It was accordingly pleaded that the instant suit is barred by res judicata. It was also alleged that the instant suit is barred by Section 15 of the Eviction Act. Averments of the plaintiff were controverted. Various other pleas were also raised by the defendants. The plaintiff filed replication to controvert the stand of the defendants. Trial Court framed 9 issues out of which issues No.4 to 6 were treated as preliminary issues. The same are reproduced hereunder:- “4. Whether the suit is not maintainable? OPD 5. Whether the present suit is barred under Section 15 of the Punjab Public Premises Act? OPD 6. Whether the suit is barred by principles of res judicata? OPD” The parties led their evidence on the aforesaid RSA No.249 of 1987 -3- preliminary issues. Learned Sub-Judge Ist Class, Patiala vide judgment and decree dated 22.03.1985 decided all the aforesaid three preliminary issues against the plaintiff and consequently dismissed the suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 21.03.1986. Feeling aggrieved, the plaintiff-State of Punjab has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file including records of the trial Court. Insofar as issue No.5 is concerned, Section 15 of the Eviction Act bars jurisdiction of the Civil Court to entertain a suit by unauthorized occupant of public premises to challenge order of eviction or order of recovery of rent passed under the Eviction Act by the competent authority. However, Section 15 of the Eviction Act does not bar suit by State having failed under the Act. Learned Senior counsel for the respondents could not controvert this position. Accordingly it has to be concluded that the instant suit filed by State of Punjab is not barred by Section 15 of the Act. Accordingly, finding of both the Courts below on issue No.5 is reversed. As regards issue No.4, the suit has been held to be barred by Section 23 Rule 1 C.P.C. It is not disputed that the plaintiff earlier filed suit No.414 T/dated 07.01.1969 which was dismissed as withdrawn vide order dated 05.12.1973 EX.D4 and the plaintiff-State was given liberty to proceed against the defendant under the Eviction Act. The said previous suit was also filed by the State of Punjab for possession of the suit property against the defendants/their predecessors. Pursuant to order dated 05.12.1973 whereby the RSA No.249 of 1987 -4- previous suit was dismissed as withdrawn, the plaintiff filed ejectment application under the Eviction Act against the respondents for their eviction from the suit property. The said ejectment application was dismissed by Collector vide order dated 07.04.1976 EX D-5. Appeal preferred by State of Punjab against the said order was dismissed by Commissioner vide order dated 08.03.1979 Ex.D-6. CWP No.902 of 1980 filed by State of Punjab against the said orders of Collector and Commissioner was dismissed in limine by Division Bench of this Court vide order dated 06.05.1981 Ex.D-7. While withdrawing the previous suit filed for possession of the same suit property, the plaintiff did not seek nor was granted liberty to file fresh suit on the same cause of action or relating to the same property. Consequently, in view of order 23 Rule 1(4) C.P.C, the plaintiff is precluded from instituting the instant fresh suit. Learned counsel for the appellant contended that the previous suit was withdrawn to avail remedy under the Eviction Act. It is correct that the previous suit was withdrawn to avail remedy under the Eviction Act. However, the plaintiff accordingly availed of the said remedy under the Eviction Act, but failed upto this Court. Having done so, the plaintiff cannot institute a fresh suit because the same is barred by Order 23 Rule 1(4) C.P.C as the previous suit for the same relief was dismissed as withdrawn without seeking or being granted liberty to file a fresh suit for the same relief. Consequently, there is no infirmity in the finding of the Courts below on issue No.4. The said finding is accordingly affirmed holding that the instant suit is not maintainable in view of bar created by Order 23 Rule 1(4) C.P.C on account of dismissal of the previous suit as withdrawn. RSA No.249 of 1987 -5- As regards issue No.6, competent authority under the Eviction Act has already decided after recording evidence that the plaintiff has failed to prove the suit property to be public premises i.e the plaintiff has failed to prove the suit property to be ownership of the plaintiff. The order of the Collector was upheld by the Commissioner and by this Court in writ petition. Consequently, the instant suit is barred by res judicata. The claim of the plaintiff having already been adjudicated and rejected by the competent authority and the plaintiff having failed in writ petition filed in this Court, the instant suit would be barred by principle of res judicata. Consequently finding of Courts below on issue No.6 is also affirmed. In view of the aforesaid discussion, the instant appeal is dismissed being without any merit. ( L. N. MITTAL ) JUDGE 11.02.2010 A. Kaundal