IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 949 of 2011 Date of Decision: 31 st May, 2011 Smt. Phoolwati ….Appellant Versus Smt. Anguri Devi & others ….Respondents CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT : Mr. B. S. Rana, Advocate for the appellant. * * * * * L. N. Mittal, J. (Oral) CM No.2587-C of 2011 Allowed as prayed for. CM No.2588-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 4 days in filing the appeal is condoned. CM No.2589-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 82 days in refiling the appeal is condoned. Main Appeal: Smt. Phoolwati plaintiff having been non-suited by the courts below has filed the instant second appeal. RSA No.949 of 2011 (O&M) The plaintiff claims to be widow of Shanker Singh and having six sons and a daughter out of the said wedlock. Shanker Singh retired from service in the year 1990 and died on 24.02.1994. Prior to it, defendant- respondent No.1 Anguri Devi, who is none else but sister of the plaintiff- appellant, started residing with Shanker Singh after death of Mangal Singh husband of Anguri Devi. Mangal Singh was younger brother of Shanker Singh. From the relationship of Anguri Devi with Shanker Singh, two issues were born. However, the plaintiff felt shy to admit Anguri Devi to be also wife of Shanker Singh. The dispute relates to pension of Shanker Singh since deceased. Plaintiff in the suit claimed her right to the said pension being widow of Shanker Singh. It was alleged that defendant No.1 has no right, title or concern with the said pension. Plaintiff had earlier filed another suit claiming same relief regarding pension of Shanker Singh. Plaintiff’s case is that during pendency of the said suit, defendant No.1 assured the plaintiff that she i.e. defendant No.1 would transfer the pension in the name of the plaintiff and would also pay the pension amount already received by her to the plaintiff. On this assurance, the plaintiff had withdrawn her said previous suit. However, defendant No.1 did not keep her promise. Plaintiff did not receive any amount of pension of Shanker Singh, necessitating the filing of the instant second suit. The plaintiff sought declaration that she is widow of Shanker Singh and is, therefore, entitled to receive pension. Defendant No.1 contested the suit and broadly denied the plaint averments. It was denied that plaintiff is wife of Shanker Singh. It was -2- RSA No.949 of 2011 (O&M) pleaded that defendant No.1 is legally wedded wife of Shanker Singh and has, therefore, been rightly granted his pension. It was also pleaded that instant second suit is barred as earlier suit filed by the plaintiff was dismissed as withdrawn on 18.04.1996. Defendant No.1 denied having given any assurance to the plaintiff to pay the pension amount to her. Defendants No.2 and 3 (Haryana State and its officer) pleaded that family pension has been given to defendant No.1 in view of her nomination by Shanker Singh. In replication, the plaintiff pleaded that she could not be made to suffer for the negligent of her counsel, who had withdrawn the previous suit without ensuring the grant of relief to the plaintiff. Learned Civil Judge (Junior Division), Rewari vide judgment and decree dated 11.08.2009 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Rewari vide judgment and decree dated 12.05.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Both the courts below have found that the instant suit is barred by Order 23 Rule 1(4) of the Code of Civil Procedure (in short, CPC), in view of unconditional withdrawal of the previous suit for same relief. No meaningful argument could be advanced against said concurrent finding of the courts below to non-suit the plaintiff. On the contrary, the plaintiff herself admitted that she had withdrawn her previous suit. Admittedly the said suit was withdrawn unconditionally and without seeking liberty to file -3- RSA No.949 of 2011 (O&M) fresh suit on the same cause of action. It is also undisputed that while withdrawing the previous suit, no reference was made to alleged assurance of defendant No.1 to pay the pension amount to the plaintiff. Consequently there is no escape from the conclusion that the instant second suit is barred by Order 23 Rule 1(4) CPC. Plaintiff’s plea that she had withdrawn the previous suit on assurance of defendant No.1 regarding payment of pension to the plaintiff is completely meritless, untenable and frivolous. The same is inherently and intrinsically unacceptable. The plaintiff having entered into litigation with defendant No.1 by filing the previous suit, would not have withdrawn the previous suit without written assurance of defendant No.1 if at all defendant No.1 had assured to pay the pension amount to the plaintiff. However, admittedly there is no such written assurance. There is also no cogent evidence regarding the alleged assurance. Moreover, the previous suit was withdrawn on 18.04.1996 and the instant suit was filed on 26.05.2001 i.e. more than 5 years after withdrawal of the previous suit. Admittedly during this period of more than 5 years, no pension amount was paid to the plaintiff. If there was any assurance by defendant No.1 to pay the pension amount to the plaintiff and if the amount was not so paid, the plaintiff would not have waited for more than five years to file the instant second suit. In addition to it, the plaintiff in the replication herself contradicted her plea taken in the plaint regarding the alleged assurance. In the replication, the plaintiff alleged that the plaintiff should not be made to suffer on account of negligence of her counsel who had withdrawn the previous suit without ensuring the grant of relief to the plaintiff. Thus plaintiff’s plea in the -4- RSA No.949 of 2011 (O&M) replication depicts that defendant No.1 had not given the alleged assurance to the plaintiff. Thus examined from any angle, it is manifest that the plaintiff simply withdrew the previous suit for the same relief unconditionally and therefore, the instant second suit is clearly barred by Order 23 Rule 1(4) CPC. Concurrent finding recorded by the courts below to non-suit the plaintiff on this ground does not suffer from any infirmity, much less perversity or illegality. Consequently the said finding cannot be interfered with in any manner. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 31st May, 2011 ‘raj’ -5-