IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29.09.2011 CORAM The Hon'ble Mr.Justice R.S.Ramanathan S.A.No.1057 of 2011 1.Mrs.V.P.Salu 2.Irene George ( minor) 3.Evelyn George ( minor) ( minors 2 and 3, are rep. by their mother and next friend Mrs.V.P.Salu) ... Appellants/Plaintiffs Vs. Mr.R.Vadivelu ...Respondent/Defendant Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 28.10.2009, passed in A.S.No.5 of 2009, on the file of the Subordinate Court, Udagamandalam, in confirming the judgment and decree dated 10.2.2009, passed in O.S.No.204 of 2005, on the file of the District Munsif Court, Udagamandalam. For Appellants : Mr.S.Kadarkarai For Respondent : Mr.V.Raghavachari JUDGMENT The unsuccessful plaintiffs are the appellants herein and they filed the suit for the relief of declaration that they are entitled to the easementary right of way described in Part – II of the schedule to the plaint and for injunction. 2. The case of the appellants/plaintiffs is that they are the widow and children of one Mr.O.M.George, who purchased the suit property described in Part – I of the schedule, along with the right of way from Kandal Bazaar Road on the south to the plaintiffs' property. The right of way is described as Part -II of the schedule and in respect of the right of way only, the suit was filed. 3. The respondent/defendant contested the suit disputing the right of the appellants/plaintiffs with regard to the right of way. He has also raised a plea that the earlier suit filed by Mr.O.M.George, the husband of the first appellant in O.S.No.191 of 1998, was dismissed as abated and therefore, the present suit filed https://hcservices.ecourts.gov.in/hcservices/ by the appellants/plaintiffs is barred under Order 22, Rule 9 and Order 2, Rule 2 of the Code of Civil Procedure (for short 'C.P.C.'). 4. The trial Court did not accept the plea of the respondent/defendant that the suit was barred under Order 22, Rule 9, but dismissed the suit holding that the appellants/plaintiffs are not entitled to the relief of declaration. 5. Being aggrieved, the appellants preferred an appeal against the dismissal of the suit and the respondent filed appeal against the findings of the trial Court that the suit filed by the appellants is not barred by Order 22, Rule 9 of C.P.C. and the First Appellate Court dismissed the appeal filed by the appellants and allowed the appeal filed by the respondent, holding that the present suit is barred by Order 22, Rule 9 of C.P.C. Hence, the Second Appeal. 6. Mr.S.Kadarkarai, the learned counsel appearing for the appellants submitted that First Appellate Court erred in holding that the present suit filed by the appellants is barred under Order 22, Rule 9 of C.P.C., without properly appreciating that the cause of action in both the suits are different and the earlier suit was filed by the predecessor in title of the appellants and the present suit is filed by the appellants, as the respondent prevented the appellants from using the pathway and therefore, the findings of the First Appellate Court that the suit is barred by Order 22, Rule 9 of C.P.C. is not correct. 7. I am unable to accept the contention of the learned counsel for the appellants. Admittedly, one Mr.O.M.George, the husband of the first appellant and father of the appellants 2 and 3 filed the suit in O.S.No.191 of 1998, against the respondent for declaration and injunction. That suit was also filed on the very same allegations as stated in the present plaint. In the earlier suit in O.S.No.191 of 1998, filed by Mr.O.M.George, the cause of action paragraph reads as follows;- ''The cause of action arose at Ootacamund, where the suit property is situated, on and since 31.5.1989, when the plaintiff purchased the suit property with the easementary right of way, on and since 15.7.1998, and thereafter, when the defendant has blocked the right of way, and this Courts has jurisdiction to try the suit. '' In the present suit, the cause of action paragraph is as follows:-. " The cause of action arose, on and since 31.5.1989 when O.M.George purchased the property on and since 4.11.1999, when O.M.George died leaving the plaintiffs to inherit the property on and since 1.10.1998, when O.S.No.191 of 1998 was filed and https://hcservices.ecourts.gov.in/hcservices/ 26.9.2002, when it abated, on and since 20.8.2005, when the defendant once again commenced disturbance and this Courts has jurisdiction to try this suit." 8. Therefore, as per the cause of action paragraph in both the suits, it is seen that the declaratory relief of easementary right was sought on the basis of the property purchased by Mr.O.M.George, on 31.5.2009, and in the earlier suit, his right was interfered and that was stated as the cause of action and in the present suit also, when the appellants/plaintiffs' right was disturbed, the suit was filed. 9. Therefore, the cause of action for the main relief of declaration is one and the same in both the suits and that was rightly appreciated by the First Appellate Court and held that, when the earlier suit on the same cause of action was dismissed as abated, under the provisions of Order 22, Rule 9 of C.P.C., no fresh suit shall be brought on the same cause of action. Unfortunately, this was not properly appreciated by the trial Court and the trial Court held that the cause of action in both the suits are different, without properly appreciating that the declaratory relief sought for in both the suits is on the same cause of action. Therefore, the First Appellate Court correctly appreciated the same and held that the present suit is barred under Order 22, Rule 9 of C.P.C. and dismissed the appeal filed by the appellants and allowed the appeal filed by the respondent. Hence, I do not any reason to interfere with the judgment and decree of the First Appellate Court and no substantial question of law arises for consideration. 10. In the result, the judgment and decree of the First Appellate Court is confirmed, by setting aside the judgment and decree of the trial Court and the Second Appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar 1.The Subordinate Judge, Udagamandalam. 2.The District Munsif, Udagamandalam. 3. 1 cc to Mr. V.Raghavachari, Advocate, Sr.No.61502 S.A.No.1057 of 2011 msm(co) pmk.15.12.2011 https://hcservices.ecourts.gov.in/hcservices/