Civil Revision No.2701 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2701 of 2011(O&M) Date of Decision: October 5, 2011 Shri Ram Kumar .....Petitioner v. Dr.Hemo Prabha Saikia and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Lokesh Sinhal, Advocate for the petitioner. Mr.Sameer Rathore, Advocate for Mr.Sumeet Goel, Advocate for respondent no.1. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 22.12.2010, Annexure P8, passed by learned trial Court vide which preliminary issues were decided against the present petitioner-defendant no.4. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Briefly stated, the present suit was filed by respondent-plaintiff, Dr.Hemo Prabha Saikia for a decree for declaration that surrender deed dated 22.7.1997 is a forged document and was not executed by the plaintiff and that sale deed dated 7.8.1997 executed by respondent-defendant no.3 as attorney of respondent-defendant no.2 in favour of present petitioner- defendant no.5 in respect of land in dispute, which is part of the land under perpetual lease-hold rights of the present respondent-plaintiff is illegal, null, Civil Revision No.2701 of 2011(O&M) -2- void and against the interest of the plaintiff as a lessee/pattedar of the land in dispute and that she is not bound by the said lease deed with a further prayer for a decree for recovery of possession of the suit land. It was contended that respondent-defendant no.2 executed a lease deed dated 30.3.1992 for a period of 99 years for a total consideration of Rs.30,000/- in favour of plaintiff in respect of the land in dispute and the possession was handed over to the plaintiff through her attorney. However, thereafter respondents-defendants no.1 and 2 had taken illegal possession of the same. It is further contended that fraud was also committed upon respondent- plaintiff as some lady impersonated her in connivance with respondents- defendants no.1 and 2 and deed of surrender regarding lease hold rights was got executed and thereafter sale deed was executed by defendant no.3 as attorney of defendant no.2 in favour of defendant no.4, i.e., present petitioner. She has challenged the said surrender deed and the sale deed and sought consequent relief of possession. Suit was contested by present petitioner-defendant no.4. Certain preliminary objections were taken regarding maintainability of the suit and the suit being not properly valued for the purpose of court fee and jurisdiction. The following issues were treated as preliminary issues by learned trial Court:- “4. Whether suit is not maintainable in the present form? OPD 6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD” After hearing learned counsel for the parties, learned trial Court decided issue No.4 in favour of respondent-plaintiff by holding that the suit is maintainable in present form. Regarding court fee, respondent-plaintiff Civil Revision No.2701 of 2011(O&M) -3- was directed to affix the Court fee on the relief of possession @10% of total rent in respect of the land in dispute. It has been contended by learned counsel for the petitioner that he does not want to contest the finding of learned trial Court on issue no.6 regarding court fee and hence he has restricted his argument on issue no.4. He has contended that this is the third suit filed by respondent-plaintiff and that in view of the fact that earlier two suits were got dismissed as withdrawn by respondent-plaintiff, without getting the permission from the Court to file fresh suit, she is precluded from filing the present suit in respect of the subject matter in dispute under Order 23 Rule 1(4) and under Order 2 Rule 2 of the Code of Civil Procedure (for short `the Code'). On the other hand it has been contended by learned counsel for the respondent-plaintiff that first suit was filed for permanent injunction only and hence, the same was on different cause of action. He further contended that second suit was for declaration without seeking relief of possession and hence, there was formal defect in the suit and hence, an application was filed for withdrawal of the suit by mentioning that another suit for declaration and recovery of possession would be filed and hence, it is contended that requisite permission of the Court for filing fresh suit regarding the same subject matter is implied. Admittedly, the first suit was filed by respondent-plaintiff for a decree for permanent injunction restraining the present petitioner and other defendants from raising any construction on the property in dispute and restraining them from selling or leasing out the same to anybody else. A careful perusal of application, Annexure P1, shows that the cause of action for filing a fresh suit was that petitioner after taking illegal Civil Revision No.2701 of 2011(O&M) -4- possession of the land in dispute wanted to raise construction and hence a suit for mere injunction was filed restraining him from raising construction and from alienating the same. Statement was given by counsel for respondent-plaintiff, Annexure P2, to the effect that the said suit had become infructuous and hence, on the basis of said statement, the said suit was dismissed as withdrawn, vide order dated 2.8.1999, Annexure P3. Respondent-plaintiff filed another suit, Annexure P4, for declaration and permanent injunction again without seeking relief of possession. Hence, an application was moved on behalf of respondent-plaintiff before learned trial Court which is Annexure P5, under Order 23 Rule 1 of the Code for permission to withdraw the suit. The relevant paragraphs of the application are as under:- “1. That the above mentioned suit is pending in this Hon'ble Court and is fixed for hearing on 4.10.2011. 2. That the defendants on or about 30.6.1999 had committed trespass and forcibly occupied the land in dispute but in the above mentioned suit the relief of recovery of possession was not claimed due to inadvertence. 3. That the plaintiff now has been advised to file a suit for recovery of possession against the defendants for the purpose of obtaining effective relief. Therefore, the plaintiff has decided to withdraw the above mentioned suit and to file the fresh suit for declaration and recovery of possession against the defendants. Hence, this application. It is, therefore, prayed that the above mentioned suit may kindly be dismissed as withdrawn.” On the said application, following order was passed by learned trial Court, which is Annexure P6. “ Today the case was fixed for consideration. Counsel for the plaintiff has moved an application u/o 23 Rule 1 CPC Civil Revision No.2701 of 2011(O&M) -5- read with Section 151 for permission to withdraw the suit. Heard. Keeping in view the grounds mentioned in the application, the suit of the plaintiff is hereby dismissed as withdrawn. File be consigned to record room” So far as the first suit, which was only for permanent injunction is concerned, the same was on different cause of action. The said suit was neither for declaration nor for possession. Hence, merely on the ground that suit was filed for mere injunction without claiming relief of declaration and possession, it cannot be said that subsequent suits for declaration and possession are barred either under Order 23 Rule 1 or under Order 2 Rule 2 of the Code. So far as withdrawal of second suit, which was filed for declaration only without claiming relief of possession is concerned, a bare perusal of aforementioned order passed by learned Civil Judge (Junior Division) shows that the suit was permitted to be dismissed as withdrawn in view of the grounds mentioned in application. In the application, as reproduced above, ground was taken by respondent-plaintiff to withdraw the suit for filing fresh suit for declaration and injunction. There was formal defect in the said suit, as suit for mere declaration is not maintainable without claiming relief for possession. In this case, admittedly, respondent- plaintiff was dispossessed by present petitioner even before filing of the first suit. Hence, the suit for declaration was withdrawn and thereafter the present suit was filed for declaration with a relief for possession. In view of these facts, the only inference can be drawn is that permission to withdraw the suit for mere declaration vide order dated 4.10.2001 was deemed to be with liberty to file a fresh suit as there was Civil Revision No.2701 of 2011(O&M) -6- formal defect in the earlier suit. Hence, there is no force in the argument of learned counsel for the petitioner that suit is barred either under Order 23 Rule 1 (4) of the Code or under Order 2 Rule 2 of the Code. On the point reliance is placed upon a judgment rendered by a coordinate Bench of this Court in Lal Singh v. Ajit Singh 2008(3) RCR (Civil) 650, wherein under similar circumstances it was observed that permission to withdraw is deemed to be with liberty to file a fresh suit as the Court would not permit withdrawal without permission to file fresh suit. In the present case as well, Court has not passed any specific order regarding assertion of respondent- plaintiff that she intends to file fresh suit for declaration and recovery of possession. Moreover, Court could not have refused permission to file fresh suit for declaration and possession regarding the subject matter in dispute as earlier suit was defective in view of peculiar facts and circumstances of the case. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory Civil Revision No.2701 of 2011(O&M) -7- jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 5.10.2011 (Ram Chand Gupta) meenu Judge