CR No. 1308 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1308 of 2008 Date of decision: March 23, 2009 Anil Kumar Dev and another .. Petitioners v. Brijinder Kaur and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Vijay Sharma, Advocate for the petitioners. Mr. M. S. Talwar, Advocate for respondent No. 1. Ms. Ekta Thakur, Advocate for respondent No. 2. .. Rajesh Bindal J. Challenge in the present petition is to the order dated 27.11.2007, passed by the learned court below, whereby the application filed by the petitioners under Order 7 Rule 11 CPC for rejection of the plaint was dismissed. Briefly, the facts are that respondent No. 1 filed a suit for mandatory injunction against the petitioners in which the petitioners filed application for rejection of plaint raising the issue regarding maintainability of the suit under Order 23 Rule 3 CPC and also that the same was time barred. The application having been rejected, the petitioners are before this Court. Learned counsel for the petitioners submitted that the suit, which was filed by respondent No. 1 against the petitioners, was third in series. The same was nothing else but an abuse of process of law. It was filed just with a view to harass the petitioners. Narrating the facts, it was submitted that on 31.3.2001, respondent No. 1 filed a suit for mandatory injunction against the father of petitioner No. 1, which was dismissed as withdrawn on 22.11.2003. On the same date, a fresh suit was filed against the petitioners claiming same relief, in which application for withdrawal of suit with permission to file a fresh one was filed, which was dismissed by the learned court below on 9.2.2005. Thereafter, on the statement of CR No. 1308 of 2008 [2] counsel for respondent No.1, the suit was dismissed as withdrawn. After dismissal of the second suit as withdrawn, third suit was filed claiming the same relief. It is in this suit that the petitioners filed application under Order 7 Rule 11 CPC raising the plea that the earlier suit filed for same cause of action having been dismissed as withdrawn without any permission to file a fresh one, the subsequent suit was barred under Order 23 Rule 4 CPC. He further submitted that as is alleged in the plaint, the cause of action to file the suit arose on 19.4.2001, the suit having been filed on 13.3.2005 was clearly beyond limitation as for filing a suit for mandatory injunction, the limitation is 3 years. In view of the aforesaid factual position, the impugned order passed by the learned court below dismissing the application filed by the petitioners for rejection of plaint is not sustainable and deserves to be set aside. On the other hand, learned counsel for respondent No. 1 submitted that the facts in the present case are not so simple as are sought to be projected by the petitioners. Respondent No. 1 had purchased the property by way of agreement to sell. As the father of petitioner No. 1 had placed roof of his house in common street and wall, which exclusively belonged to respondent No. 1, suit for mandatory injunction was filed against the father of petitioner No. 1 under the impression that he was owner of the property. However, when it was pointed out in the written statement filed that he was not the owner of the property, rather, the petitioners were the owners, on withdrawal of the earlier suit on 22.11.2003, a fresh suit was filed immediately against the petitioners. It was pointed out that in the first suit and the second suit as well, respondent No. 1 had claimed that the house in question where respondent No. 1 is living was owned by Bishan Singh son of Jwanda Singh. Harbans Singh Ahuja son of late Bishan Singh had entered into an agreement to sell the same with respondent No. 1 on 13.11.1990 as the property had been inherited by him. As total amount of sale consideration had been paid, possession of the house had been delivered to respondent No.1 and accordingly, she was in possession of the house as owner thereof and further that on account of failure of the vendor to get the sale deed registered in favour of respondent No. 1, a civil suit for specific performance of agreement to sell was filed. As the civil suit was decreed on 23.11.2004, application was filed for permission to withdraw the suit filed by respondent No. 1 against the father of petitioner No. 1 with permission to file a fresh one on the same cause of action on account of certain technical defects. Though the application was dismissed, however, the suit was withdrawn on 3.3.2005 specifically stating before the Court that respondent No. 1 had become owners of the house in dispute during the CR No. 1308 of 2008 [3] pendency of the suit and she will file a fresh suit on the basis of ownership of the property. The suit having been dismissed as withdrawn on 3.3.2005, a fresh suit was filed on 12.3.2005. Respondent No. 1 herein is an old lady, whereas petitioner No. 1 and also his father are lawyers of standing at Patiala. As far as claim of the petitioners for rejection of plaint on the ground that the suit was barred under Order 23 Rule 4 CPC or time barred is concerned, the submission is that both these issues can only be appreciated if the parties lead their respective evidence. Unless the earlier pleadings are proved on record, the court cannot at preliminary stage opine that the subsequent suit filed by respondent No. 1 was not maintainable. Heard learned counsel for the parties and perused the record. The undisputed facts on record are that initially respondent No. 1 filed a suit on 31.3.2001 against Khem Chand Dev for mandatory and permanent injunction, which was dismissed as withdrawn on 22.11.2003 for the reason that it was pointed out by Khem Chand Dev in the written statement filed that he was not the owner of the property. On the same date, i.e., 22.11.2003, a fresh suit for mandatory injunction was filed by respondent No. 1 against Anil Kumar Dev son of Khem Chand Dev and Smt. Rajni wife of Virender Kumar Dev son of Khem Chand Dev with the following title and prayer: “Suit for mandatory injunction directing the defendants to remove the burden/roof placed over the common street and on the wall marked as A-B shown in the site plan attached which is exclusively belongs to the plaintiff and is 13'-9” in length shown in red colour in the site plan which is on the southern side of the house of the plaintiff situated at Mohalla Meer Kundlan Patiala bounded as under: East: Common Street and built up house. West: House of Lachhman Dass and Murlidhar and street . North: House of Darshan Singh Sodhi (Little Flowers School and Dera Badbagh). South: Common street 5' wide and a built up house. xx xx xx It is, therefore, prayed that the suit of the plaintiff may kindly be decreed and a decree for mandatory injunction directing the defendants to remove the burden/roof place on the common street and on the wall marked A-B shown in the site plan which is in exclusively belongs to the plaintiff, fully described in the heading of CR No. 1308 of 2008 [4] the plaint, be passed in favour of the plaintiff and against the defendants. Any other alternative relief which this Hon'ble Court may deem fit be also granted in favour of the plaintiff and against the defendants with costs.” During the pendency of the suit, respondent No. 1 filed application under Order 23 Rule 3 CPC for withdrawal of the suit with permission to file a fresh one on the same cause of action with the plea that there were certain formal defects in the suit. The application was contested by the petitioners and the same was dismissed by learned Civil Judge (Junior Division), Patiala vide order dated 9.2.2005. Respondent No.1 being not aggrieved against the aforesaid order did not challenge the same in any further proceedings. Respondent No.1 thereafter through her counsel got the following statement recorded in the Court on 3.3.2005: “ I withdraw the suit of the plaintiff. The plaintiff has become the owner of the house in dispute during the pendency of the suit and she will file a fresh suit on the basis of ownership. So, the suit may kindly be dismissed as withdrawn.” After recording the said statement, the learned court below passed the following order: “ In view of the statement so got recorded by the counsel for the plaintiff, the suit of the plaintiff is hereby dismissed as withdrawn.” Thereafter, a fresh suit was filed by respondent No.1 with the following title and prayer: “Suit for mandatory injunction directing the defendants to remove the burden/roof placed over the commkon street and on the wall marked as A-B shown in the site plan attached which is exclusively belongs to the plaintiff and is 13'-9” in length shown in red colour in the site plan which is on the southern side of the house of the plaintiff situated at Mohalla Meer Kundlan Patiala and bounded as under: East: Common Street and built up house. West: House of Lachhman Dass and Murlidhar and street . North: House of Darshan Singh Sodhi (Little Flowers School and Dera Badbagh). xx xx xx It is, therefore, prayed that the suit of the plaintiff may kindly be decreed and a decree for mandatory injunction directing the defendants to remove the burden/roof place on the common street CR No. 1308 of 2008 [5] and on the wall marked A-B shown in the site plan which is in exclusively belongs to the plaintiff, fully described in the heading of the plaint, be passed in favour of the plaintiff and against the defendants. Any other alternative relief which this Hon'ble Court may deem fit be also granted in favour of the plaintiff and against the defendants with costs.” It is in the aforesaid third suit that the petitioners filed application under Order 7 Rule 11 CPC for rejection of the plaint. The plea was that after withdrawal of the earlier suit filed on the same cause of action and with the same prayer having been withdrawn without liberty to file fresh one on the same cause of action, a fresh suit was clearly barred under law and further that the suit was barred by limitation, as the cause of action to file the suit arose on 19.4.2001 and the suit having been filed beyond 3 years was barred by limitation. The learned court below dismissed the application opining that it is matter of evidence as to whether the relief claimed in both the suits is same or not and similar is the position with regard to the plea of limitation. The fact that in both the suits, same relief has been claimed is not disputed by respondent No. 1 at the time of hearing, as is even evident from the copies of the plaints placed on record, which have not been disputed. Order 23 Rule 4 CPC clearly provides that if the plaintiff withdraws from the suit or part of a claim without permission to file a fresh one on the same cause of action, he shall be precluded from instituting any suit in respect of such subject matter or such part of the claim. As is evident from the facts in the present case, a specific application filed by respondent No. 1 for withdrawal of the suit with permission to file a fresh one on the same cause of action was dismissed by the learned court below on 9.2.2005 and the order attained finality as the same was not impugned by respondent No. 1- plaintiff any further. Thereafter, withdrawal of the suit on 3.3.2005 was simplicitor. Once these facts are not in dispute and also that the claim made in both the suits was identical, in my view, the learned court below has committed illegality in dismissing the application filed by the petitioners under Order 7 Rule 11 CPC for rejection of the plaint. As far as plea of limitation is concerned, I do not deem it appropriate to opine thereon as even on account of legal bar under Order 23 Rule 4 CPC, fresh suit was not maintainable. For the reasons mentioned above, the impugned order passed by the learned court below is set aside and the suit filed by respondent No. 1 is rejected, being barred under Order 23 Rule 4 CPC. CR No. 1308 of 2008 [6] The revision petition is allowed in the manner indicated above. (Rajesh Bindal) Judge March 23, 2009 mk