KRISHNA KUMAR CHOUBEY Vs. RAM NARAYAN CHOUBEY

JUDGEMENT

(1.) Feeling aggrieved by the order dated 23.7.2012 passed by learned IV Additional Civil Judge, Class-II, Narsinghpur in Civil Suit No.15-A/2011 whereby the application under Order VII Rule 11 CPC of the defendants has been rejected, the defendant No.2 has filed this revision application under Section 115 CPC.

(2.) Initially a suit for injunction was filed by plaintiff-Ram Narayan Choubey but as stated by Shri B.P. Sharma, learned counsel for the respondent No.1-plaintiff, later on it has been amended and a relief of declaration has also been sought.

(3.) The contention of Shri Ruprah, learned senior counsel for the applicant is that the present suit which has been registered as Civil Suit No.15-A/2011 is the third suit. According to learned senior counsel, first civil suit which was registered as Civil Suit No.2-A/1993 was filed by respondent No.1-Ram Narayan Choubey against the present applicant and other defendants and that suit was withdrawn on 23.8.1999. According to learned senior counsel, that suit was filed on the basis of cause of action which arose on 11.3.1991 and thereafter second civil suit No.54-A/2002 on the basis of cause of action accrued to plaintiff-respondent No.1 on 28.5.2002 was filed against the same parties in regard to same subject matter and later on it was also withdrawn. Learned senior counsel submits that both the suits were withdrawn without asking liberty to file fresh suit as provided under Order XXIII Rule 1(3) CPC, therefore, no cause of action accrued to plaintiff to file the present third suit, therefore, rightly the application was filed by defendants under Order VII Rule 11 CPC which has been illegally rejected by learned Trial Court. Learned senior counsel further submits that the suit is also barred by prescribed period of limitation. It has also been put forth by him that the property exclusively belonged to Kashi Bai who is the mother of the plaintiff as well as of defendants 1 and 2. However, said Kashi Bai bequeathed the suit property by executing a registered Will on 11.6.1983 in favour of defendants. It has also been stated by Shri B.P. Sharma, learned counsel appearing for the respondent No.1-plaintiff that said Kashi Bai died in the year 1996. Thus, on the basis of said registered Will the present applicant and respondent No.2 Laxmi Narayan Choubey submitted necessary application to mutate their names in the revenue record and their application has been allowed by the Tehsildar and appeals which were filed by plaintiff-respondent No.1 before the Sub-Divisional Officer and the Revenue Commissioner have been dismissed and now the revision has been filed plaintiff-respondent No.1 before the Revenue Board which is pending. Hence, it has been contended that learned Trial Court has acted illegally with material irregularity in exercise of its jurisdiction in dismissing the application.