C.R. No. 1905 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1905 of 2008 (O&M) Date of decision: January 14, 2009 Raghubir Singh .. Petitioner v. Harbhajan Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. G. S. Gandhi, Advocate for the petitioner. Mr. Sanjay Mittal, Advocate for the respondent. .. Rajesh Bindal J. Challenge in the present petition is to the order passed by the learned court below, whereby the application filed by the respondent for dismissal of the suit on account of the fact that an earlier suit filed by the petitioner-plaintiff had been withdrawn without permission to file fresh one, was allowed and the suit was dismissed. Briefly, the facts are that the petitioner filed a suit bearing No. 194 of 2002 for injunction on the same cause of action and during the pendency thereof, subsequent suit under consideration bearing No. 104 of 2005 was filed on 16.7.2005. The earlier suit was withdrawn on 19.7.2005 after the filing of the suit in 2005. It was in these facts that the respondent-defendant filed an application before the court below for dismissal of the suit considering the provisions of Order XXIII Rule 1(4) and Order II Rule 2 of the Code of Civil Procedure (for short, `the CPC'). The court finding merit in the submissions of the respondent-defendant dismissed the suit. Learned counsel for petitioner submitted that parties to the litigation are real brothers. The earlier suit was filed by the petitioner in 2002. However, a technical objection was taken by the respondent in the written statement filed with the regard to the fact that two copies of the plaint had not been furnished at the time of filing of the suit. On account of this technical defect, the petitioner, as per the legal advice received, filed a fresh suit clearly mentioning therein that he had earlier filed a suit on the same cause of action which is pending in the Court and C.R. No. 1905 of 2008 [2] after filing of the second suit, the earlier suit was withdrawn. He submitted that there is no concealment of fact by the petitioner and under the circumstances when on account of technical defect after filing of the subsequent suit, the earlier suit is withdrawn, the second suit is not barred and cannot be dismissed as such. Reliance has been placed upon Girdhari Lal Bansal v. The Chairman, Bhakra Beas Management Board, AIR 1985 P&H 219 and Vimlesh Kumari Kulshreshtha v. Sambhajirao and another, JT 2008(2) SC 179. On the other hand, learned counsel for the respondent submitted that the petitioner is merely harassing the respondent-defendant. He filed first suit in 2002. Thereafter, in 2003 by adding some more prayer, another suit was filed. In 2005, third suit was filed. Thereafter, the first suit was withdrawn where no permission was taken for filing a fresh suit. Accordingly, the fresh suit was not maintainable. He further submitted that if this process is allowed to be continued, the petitioner shall continue to file suit after suit after withdrawing the previous one. This is not the spirit of law. This will not only amount to multiplicity of litigation but would lead to sheer harassment to the opposite party. Reliance was placed upon Raja Ram of Hisar v. Ram Karan and others, 1991 HRR 24 (P&H) and Smt. Parkash Kumari v. Balwant Singh and others, 2005(2) CCC 299 (P&H). After hearing learned counsel for the parties, I find merit in the submissions made by learned counsel for the petitioner. Admittedly, he had filed a suit in the year 2002 in which a technical objection was raised by the respondent- defendant in the written statement regarding non-filing of two copies of the plaint and it was on that account that the petitioner, on legal advice, filed a fresh suit on 16.7.2005 clearly mentioning therein that on the same cause of action he had filed an earlier suit which is pending. On 19.7.2005, he withdrew the earlier suit. Provisions of Order VII Rules 11 and 13 of the CPC in addition to Order XXIII Rule 1 of the CPC, which are relevant for the purpose of consideration of the point in issue, are extracted below: “Order VII Rules 11 and 13 ORDER VII PLAINT 1. Particulars to be contained in plaint.- The plaint shall contain the following particulars:-- (a) the name of the Court in which the suit is brought; (b) the name, description and place of residence of the plaintiff; (c) the name, description and place of residence of the defendant, so far as they can be ascertained; C.R. No. 1905 of 2008 [3] (d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; (e) the facts constituting the cause of action and when it arose; (f) the facts showing that the Court has jurisdiction; (g) the relief which the plaintiff claims; (h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and (i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits. RULE 11 11. Rejection of plaint. - The plaintiff shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9; RULE 13 13. Where rejection of plaint does not preclude presentation of fresh plaint.- The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. ORDER XXIII RULE 1 WITHDRAWAL AND ADJUSTMENT OF SUITS 1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after, the institution of a suit, the plaintiff may as against all or C.R. No. 1905 of 2008 [4] any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (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 precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of the several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” A perusal of Order VII Rule 11 of the CPC shows that for violation of any of the reason mentioned therein, a plaint can be rejected by the court which include non-disclosure of cause of action, under valuation of claim in the suit, insufficiently stamped plaint, the suit being barred by any law, non-furnishing of copy of plaint in duplicate and if there is non-compliance of Order VII Rule 9 CPC, which requires furnishing of copies of the plaint for service of summons on the defendants. It is further provided for in Rule 13 of Order VII that where the C.R. No. 1905 of 2008 [5] plaint is rejected on the grounds mentioned above, the same shall not preclude the plaintiff from presenting a fresh suit in respect of the same cause of action. In the present case, the technical objection, which was taken by the respondent-defendant in the written statement filed, was that copy of the plaint was not filed in duplicate. Meaning thereby that the plaint could have been rejected on that ground under Order VII Rule 11(e) and in terms of Order VII Rule 13 of the CPC, a fresh suit on the same cause of action was not barred. Therefore, even if the Court had rejected the plaint filed by the petitioner on account of non-furnishing of duplicate copies of the plaint, a second suit on the same cause of action was not barred. In the present case, considering the objection raised by the respondent- defendant, the petitioner filed a fresh suit on the same cause of action and immediately thereafter withdrew the earlier suit, where the plaint could be rejected on account of non-furnishing of duplicate copy thereof. The aforesaid provisions do not require that the plaintiff has to obtain permission of the Court to file a fresh suit on the same cause of action. In Vimlesh Kumari Kulshrestha's case (supra), Hon'ble the Supreme Court opined that the provisions of Order XXIII Rule 1 of the CPC would not be applicable in a case where a second suit is filed during the pendency of the first suit and the first suit was withdrawn thereafter on account of a technical objection raised by the opposite party with regard to payment of proper court fee. One of the grounds on which a plaint can be rejected under Order VII Rule 11 CPC is under valuation or non-payment of proper court fee. Meaning thereby even under that circumstance, a fresh suit would not have been debarred. As far as Single Bench judgment in Raja Ram's case (supra) is concerned, the same will not have any bearing in the present case, keeping in view the subsequent judgment of Hon'ble the Supreme Court in Vimlesh Kumari Kulshrestha's case (supra). Even otherwise, it was not a case where the earlier suit was withdrawn on account of some technical defect as is the distinction which is carved out in view of the above referred provisions of Order VII Rules 11 and 13 read with Order XXIII Rule 1 of the CPC. Similarly, the judgment in Smt. Parkash Kumari's case (supra) also has no relevance in the facts of the present case where it was a case of the earlier suit being dismissed in default. In those circumstances, Order IX Rule 9 of the CPC clearly debars a fresh suit on the same cause of action, whereas in the case of rejection of plaint on non-compliance of the various factors enumerated in Order VII Rule 11 of the CPC, the second suit is not debarred. In view of the aforesaid discussion, the order passed by the learned court below is not in conformity with law and the same is set aside. The suit filed C.R. No. 1905 of 2008 [6] by the petitioner is restored to its original number. The same be now tried by the court below. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge January 14 ,2009 mk (Refer to Reporter)