KARUNA CHATURVEDI Vs. SAROJINI AGARWAL

JUDGEMENT

(1.) THIS appeal is directed against the order dated 3. 8. 2004 in Civil Suit no. 1-A/2003 by which the suit filed by Prakash Nath Chaturvedi, the predecessor of the appellants, was dismissed by the trial Court on the ground that the plaintiff was precluded from filing such suit under Order 9 rule 9, Code of Civil Procedure ( hereinafter referred to as `the Code' ).

(2.) THE learned counsel for the appellants submitted that:

(3.) SHRI A. K. Jain, the learned counsel appearing for respondent no. 4, opposed the contention and submitted that cause of action is bundle of facts which have to be ascertained from the pleadings of the case. The contention of the appellant that earlier suit was filed because of order passed by the tehsildar in mutation proceedings, and subsequent suit was filed because of the sale deed executed by defendants 1,2 and 3 in favour of defendant no. 4 on 17. 7. 2001, is misconceived. The cause of action in the earlier suit was based on certain facts on the basis of which, the plaintiff sought relief of declaration of title and in the present case also, the plaintiff claimed declaration of the title on same set of facts, though new reliefs in respect of the sale deed dated 17. 7. 2001, possession over the property etc. were sought, but the fact remains that the earlier suit seeking declaration of the title was dismissed under Order 9 rule 8 of the Code and the plaintiff was precluded from filing a subsequent suit on the basis of same cause of action. The trial Court rightly dismissed the suit in view of specific provision under order 9 rule 9 of the Code in which there is no error. He had also placed reliance to the Apex Court judgment in Suraj Ratan Thirani (supra) and submitted that this appeal itself is liable to be dismissed in view of the law laid down by the Apex Court in para 31 of the judgment of Suraj Ratan thirani (supra)