GAJANAN BHIMRAO THOMBARE Vs. ASHOK JANKILAL TAWARI

JUDGEMENT

(1.) These Revision Applications under section 115 of Civil Procedure Code, are filed by the original defendants, questioning the order passed upon an application filed by them in the respective suits filed by the respondent/original defendant, by the Civil Judge, Junior Division, Dhamangaon railway. The said application was moved for rejection of the Plaint on the ground that the suit instituted subsequently after withdrawal of the earlier suit was not maintainable. The trial Court has considered the provisions of the Order 23, Rule 1 (3) of Civil Procedure Code, and has found that the said provisions is not applicable in the instant case holding that during the pendency of the earlier suit, the plaintiff (present respondent) instituted subsequent suit and hence after institution of the subsequent suit the permission was sought for withdrawal, and therefore, the provisions of Order 23, Rule 1 (3) were not attracted. It found that the objection in relation to the Order 2, Rule 2 of Civil Procedure Code, is already raised before it and it is mixed question of law and fact and issue about it is already framed and will be adjudicated upon during the course of trial.

(2.) I have heard Advocate Deshpande, for petitioner and Shri Bakode for respondent/original plaintiff. Advocate Deshpande, states that the respondent had filed suit against the present revision applicants, Co-operative Society and district Central Co-operative Bank at Amravati for injunction and in it sought relief to restrain the defendants i. e. present revision applicants from collecting the payment of the cheques from the defendant Nos. 6 and 7 i. e. Co-operative society and Bank. He points out that, an injunction was also sought to direct the said Co-operative Society and Bank, to give payment of these cheques to the plaintiff/respondent with interest. He points out that the Pursis was filed in the suits by the respondent/plaintiffs on 25-4-2001, and as the plaintiff did not want to prosecute the suit, the suit came to be dismissed for want of prosecution. He states that in the Regular Civil Suit No. 41/2000, same plaintiff has joined revision applicant as sole defendant and has sought for money decree for recovery of Rs. 10,000/ -. He therefore, states that as the subject-matter in both the suits is same and purpose of filing is same, the subsequent suit i. e. Regular civil Suit No. 41/2000 is barred in view of Order 23, Rule 1 and Order 2, Rule 2, civil Procedure Code. He contends that impugned order of trial Court reveals total non-application of mind to the facts and law. Advocate Bakode, for respondent/plaintiff contends that the subject-matter of both the suits is not identical. He contends that the story of the respondent/plaintiff is that the revision applicant sold his cotton to Maharashtra state Cotton Growers Federation, and as payment thereof was not received, because the Amravati District Central Co-operative Bank did not have necessary amounts the respondent/plaintiff had advanced them payment against the security of cheques issued in favour of the defendants. It is his case that along with the present revision applicant, three other persons had also similarly sold cotton, and they were also advanced money by him. These persons were added as defendant nos. 3 to 5 in the suit. He further stated that therefore, the relief which was sought in that suit was to recover money on the strength of the cheques from amravati District Central Co-operative Bank. The learned Advocate further stated that in the meanwhile in view of the subsequent event i. e. rejection of application for grant of temporary injunction in Regular Civil Suit No. 29/2000 on 6-5-2000, respondent thought it fit to file individual suit against each defendant so as to seek a money decree directly against him and hence on 12-5-2000 he filed Regular Civil Suit against the present revision applicant and other suits against others sought money decree only against him. He states that the pursis was moved in the earlier suit on 20-6-2000, and in that pursis, it was mentioned that he has filed fresh suits against the present revision applicant and against other defendants therein, and therefore, respondent sought permission to withdraw the said suit and also sought liberty by praying to the Court to reserve right to file new suit. He points out that "no objection" was given on this pursis by the Advocate who appeared for the revision applicant and the application has been allowed as sought i. e. by reserving right to file new suits. The said advocate therefore, contends that the view taken by the learned trial Court is just and proper and Order 23, Rule 1 (3) of Civil Procedure Code has no application in the facts and circumstances of the case.

(3.) At this juncture it is essentially to note that the respondent has filed fresh suit vide Regular Civil Suit No. 44/2000, against Ramdas Sitaram, who has filed identical revision, vide Civil Revision Application No. 182/2004; The respondent has filed fresh suit against the defendant No. 3-Hanuman Laxman Shende, vide regular Civil Suit No. 43/2000 and the said Hanuman has filed Civil Revision application No. 183/2004; The respondent has also filed fresh suit against the defendant No. 5 - Pundlik Marotrao Zade, bearing Regular Civil Suit No. 40/2000 and the said Pundlik has filed Civil Revision Application No. 184/2004; against the defendant No. 2 - Shripat Kewalu Bansod, fresh Regular Civil Suit no. 42/2000 is filed by the respondent and the said Shripat has filed Civil revision Application No. 185/2004, before this Hon'ble Court. From the above discussion it is apparent that the facts and grounds in all these Revision applications are identical and hence they are being disposed of together by treating the Civil Revision Application No. 158/2004, as principal Civil Revision application, for that purpose.