VIOLET MAWRIRE Vs. K A JELINA JYRWA

JUDGEMENT

(1.) The short question which falls for consideration in this revision petition under Article 227 of the Constitution of India is whether the second suit filed by the petitioner is barred by Order 23, Rule 1(4)(b) of the Code of Civil Procedure if the first suit filed by her predecessor-in-interest before a court lacking inherent jurisdiction had been withdrawn without the permission of that court?

(2.) The controversy arose when the petitioner instituted Title Suit No. 3 of 2006 in the court of the Subordinate District Council Court, Shillong against the respondent for a decree, inter alia, of declaration of her ownership over the suit land measuring about acres situate at Nongmynsong, Shillong. It is her case that she is the youngest daughter of the late Killing Mawrie, from whom she inherited the suit land after her death. According to the petitioner, during the lifetime of her grandmother, the suit land had been leased out to the respondent on a rental basis @ Rs. 24 per annum, which had been regularly paid by her, but she stopped payment of the rent after the death of her grandmother. As a result, the respondent has 'become an unauthorized occupant of the suit land. It is alleged by the petitioner that during her illegal occupation, the respondent started transferring - a portion of the suit land to some other person without her consent. She has also gone to the extent of constructing RCC building on a portion of the suit land without any right over the same. She was, therefore, constrained to request the respondent to vacate the suit land and deliver peaceful possession thereof to her, but she refused to do so whereupon she instituted the suit. The respondent contested the suit and filed her written statement by denying the owner of the suit land by the petitioner. It would appear that the grandmother of the petitioner had earlier instituted Title Suit No. 40(T) of 1999 before the learned Assistant to Deputy Commissioner, Shillong against the respondent herein concerning the same subject-matter. The suit was admittedly withdrawn by her grandmother without the permission of the court to file a fresh suit in respect of the same subject-matter. The respondent now questioned the maintainability of T.S. No. 3 of 2006 before the Subordinate District Council Court on the ground that the suit is barred by Order 23, Rule 1(4)(b).

(3.) The preliminary objection was accepted by the Subordinate District Council Court, who then dismissed the suit on the ground that the same was not maintainable. It is contended by Mr. M.F. Qureshi, the learned Counsel for the petitioner, that both the parties in T.S. No. 40(T) of 1999 admittedly belonged to tribals, and the learned Assistant to D.C., Shillong had no inherent jurisdiction to entertain the suit and that as the suit was withdrawn by the grandmother of the petitioner from a court having no jurisdiction, the suit was no suit in the eye of law and, as such, the withdrawal of suit before a court lacking jurisdiction is to be treated as non est and a nullity. Consequently, so submits the learned Counsel for the petitioner, the petitioner cannot be precluded from instituting the instant suit; the trial court has grossly erred in law in non-suiting the petitioner. On the other hand, Mr. K Baruah, the learned Counsel for the respondent, supports the impugned order and contends that no case is made out by the petitioner for the interference of this Court. He maintains that once the earlier suit had been withdrawn by the grandmother of the petitioner without obtaining permission from court to file a fresh suit, irrespective of whether such court has the jurisdiction or not, the petitioner is precluded from instituting the instant suit. I have carefully gone through the impugned order. From the submissions made by the counsel appearing for both the parties, I am given to understand that the trial court dismissed the suit on the ground that the previous suit being T.S. No. 40(T) of 1999 instituted by the grandmother of the petitioner before the learned Assistant to D.C. had been withdrawn by her without permission to file a fresh suit in respect of the same subject-matter. To appreciate the rival contentions, I will refer to Order 23, Rule 1 of the Code, which reads, thus: