SHUBHRA SAXENA Vs. ASHOK KUMAR

JUDGEMENT

(1.) THIS appeal shall also govern the disposal of M.A. No. 770/03. Both the appeals are filed against the order dated 25-3-2003 passed by the Special Judge (NDPS) and Additional Motor Accident Claims Tribunal, Gwalior by which the claim petitions of the appellants are dismissed on the ground that no permission was obtained under Order 23 Rule 1 and in view of Clause (4) of Rule 1 of Order 23, the second claim petition is barred and dismissed the claim petitions of the appellants.

(2.) IN M.A, No. 338/03, the learned Tribunal dismissed the Claim Case No. 7/03 and in M.A. No. 770/03, the learned Tribunal dismissed the Claim Petition No. 8/03.

(3.) THE trial Court relied on the decision in the case of Dayachand v. Kerabai, reported in 2000(II) MPWN 31. Learned counsel for the appellants submits that the facts in the case of Dayachand (supra) are quite different and distinct to the facts in the present case. He submitted that in that case, reliefs, which they already wanted to claim, have already been granted to them and, therefore, the Court dismissed their suit in exercise of power under Order 23 Rule 1 of Civil Procedure Code without making any comments. In the instant case, though the claim petition was filed in respect of the same cause of action, but against the Maruti owner and different Insurance Co.; whereas, the earlier claim petition was filed against the Auto Rickshaw and different Insurance Company and earlier claim was dismissed as not pressed and no proceedings were instituted in the earlier suits and, therefore, the trial Court committed an error in holding that the second suit is barred by reasons for provisions of Order 23 Rule 1 of Civil Procedure Code. He placed reliance to the decision of Calcutta High Court in the case of Mrs. L.A. Saunders v. Land Corporation of Bengal Ltd., reported in AIR 1955 Calcutta 169, wherein it was held that the earlier suit was not withdrawn, but was dismissed for default under Order 9 Rule 9, Civil Procedure Code and, therefore, it was impossible to treat it as withdrawal under Order 23 Rule (1)(3). He also placed reliance on the decision of the Orissa High Court in the case of Bhagabat Jena and others v. Gobardhan Patnaik and others, AIR 1983 Orissa 50, in which the Orissa High Court has held that under Order 23 Rule 1, the plaintiff has a right to withdraw his suit at any stage, but, that right is limited to the extent that it does not result in defeating a right which has already vested in the defendant. The object of Order 23 Rule 1, Civil Procedure Code is not to enable a plaintiff, after the rights of the parties have been adjudicated, to obtain an opportunity of commencing a fresh litigation in order to avoid the result of his previous suit.