GURCHARAN SINGH Vs. NIHAL KAUR ETC

JUDGEMENT

(1.) Nihal Kaur plaintiff-respondent filed the suit (from which the present proceedings have arisen) on November 19, 1968, against Gurcharan Singh petitioner and sixteen other defendants for a declaration, which mainly affects the petitioner. The suit was contested by the petitioner inter alia on the ground that it was barred on the principles of res judicata because the plaintiff-respondent had previously filed a suit for possession of the same property on January 10, 1956, wherein she had sought the leave of the Court to withdraw the same with liberty to file a fresh one, but permission to file a fresh suit was refused and the suit was dismissed with costs on February 2, 1857, by the Subordinate Judge 2nd Class, Bhatinda. On account of the abovementioned plea, a preliminary issue was framed by the trial Court on December 6, 1968, to the effect whether this suit is barred on the principles of res judicata or not. When the parties had led their evidence on the preliminary issue and the case was fixed for arguments, the plaintiff-respondent submitted an application for permission to amend the plaint and for framing an additional issue arising out of the new plea taken by amendment. That application was allowed by the trial Court and an additional issue was framed. Against the order of the trial Court, dated January 20, 1970, allowing amendment of the plaint and framing the additional issue, Civil Revision No. 187 of 1970 was filed by the present petitioner which was decided by Koshal, J., on July 20, 1971. The learned Judge dismissed the revision as withdrawn subject to the direction that the preliminary issue framed by the trial Court on December 6, 1969, should be decided before any other issue was taken up for trial and without giving the parties any further opportunity of leading evidence on the said issue. The plaintiff-respondent tried to create some confusion regarding the interpretation of the order of Koshal, J., in the trial Court. The learned Subordinate Judge thereupon made Civil Reference No. 1 of 1972 to the Court for clarification of the order of the learned Judge, dated July 20, 1971. That reference was disposed on September 8, 1972. Koshal, J., held that his earlier order was quite clear and no clarification thereof was necessary and directed that his earlier order should be complied with as it stood and the issue framed on December 6, 1969, should be decided before the case was proceeded with further. After the abovesaid clarification had been made by this Court in answer to the reference, the plaintiff made another application to the trial Court for leave to further amend the plaint. In the meantime four of the seventeen defendants, namely, Nar Singh, Mangi Singh, Baggu Singh and Mehar Singh, died during the pendency of the present suit. Though the period for bringing on record their legal representatives and for setting aside the abatement had expired, no application of any kind had been made by the plaintiff-respondent to the trial Court in that respect. An objection was, therefore, taken by the defendant-petitioner before the trial Court that the suit itself had abated on account of the death of the above-mentioned four defendants and, therefore, the question of allowing any further amendment of the plaint could arise. It was at that stage that the plaintiff submitted an application dated February 8, 1973, to the trial Court under Order 23, Rule 1 of the Civil Procedure Code for being permitted to withdraw the suit with liberty to bring a fresh one on the same cause of action. The grounds on which liberty to file a fresh suit on the same cause of action was sought have been given in the said application in the following words :-

(2.) Notice of the above-mentioned application of the plaintiff having been given to the defendant-petitioner, he filed a written reply, dated February 13, 1973, objecting to the grant of the application inter alia on the grounds that -

(3.) By his order under revision, dated February 13, 1973, Shri Gurjit Singh Sandhu, Senior Subordinate Judge, Bhatinda allowed the application of the plaintiff in the following words :-