DIMBESWAR SAIKIA Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) THIS Plaintiff's revision is directed against the order dated 26.2.77 passed in Title Suit No. 205 of 1976 by the learned Munsiff, Nowgong, order dated 1.3.77 in Title Suit No. 42 of 1974 and order dated 27.7.77 In Misc. Case No. 12 of 1977 passed by the learned Assistant District Judge, Nowgong.

(2.) BRIEFLY , the facts giving rise to this revision are that the Petitioner had filed Title Suit No. 42 of 1974 against the order of dismissal from the service, damages for loss of remuneration, defamation and loss of prestige, etc,. The Defendant No. 11 was Inspector of Schools. No notice under Section 80 of the Code of Civil Procedure, hereafter the 'Code, having been served on the Defendant No. 11, there was formal defect in the suit. The Plaintiff Petitioner bad filed an application under Order 23 Rule 1 of the Code for withdrawal of the suit with permission to file fresh suit. The application was rejected by the court by order dated 4.2.76. The Petitioner came in Civil Revision No. 41 of 1976 to this Court, wherein by order dated 16.9.76, this Court set aside the order of the trial court dated 4.2.76. The operative portion of the order of this Court reads : "In the result, the impugned order is liable to be set aside which I accordingly do. The petition is allowed and the rule is made absolute." It appears that thereafter the learned trial court below considered the matter Afresh and taking the view that the Plaintiff had in an application filed prayed only for withdrawal of the suit, dismissed the suit. The Petitioners prayer for review was also rejected by order dated 27.7.77 also impugned in this revision. However, it appears that meanwhile in view of the period of limitation, the Petitioner had filed Title Suit No. 205/76 in the Court of Munsiff, Nowgong for the same relief 's. By order dated 26.2.77 also impugned in this revision, the learned Munsiff took the view that because the earlier suit was pending the suit could not proceed, and dismissed the suit. The Petitioner has come in revision.

(3.) ON consideration of the submissions on behalf of the Petitioner and the materials, on record, in so far as the order dated 26.2.77 passed in Title Suit No. 205 of 1976 is concerned, we have no hesitation in coming to the conclusion that the order WAS wrong and cannot be sustained, for just because an earlier suit was pending, it could not be a ground for dismissal of the subsequent suit. All that could be said was that the hearing of the second suit could be stayed in view of the provision of Section 10 of the Code. The view taken by the learned trial court in T.S. No. 205 of 1976 therefore was clearly erroneous and cannot be sustained. The order dated 26.2.77 has, therefore, to be set aside.