KARNAIL SINGH Vs. GURDEEP SINGH

JUDGEMENT

(1.) BOTH the Courts below have recorded a concurrent finding of fact that the plaintiffs have failed to discharge onus placed upon them in regard to Jai Kaur having died prior to the enforcement of the Hindu Succession Act. In fact, it has been held by both the Courts below that Jai Kaur died after enforcement of the Hindu Succession Act and defendants 1, 2, 4 to 7 being the legal heirs inherited the property of Jai Kaur. Counsel has not been able to point out how the finding recorded is against the evidence brought on record. It is also contended that defendants earlier had filed suit in regard to this very property but the same had abated and, therefore, defendants in the subsequent suit are barred from raising the same very pleas which they had taken in the suit filed by them. This contention too is without any merit. Order 22 rule 9 of the Code of Civil Procedure provides that where a suit abates or is dismissed under Order 22, no fresh suit can be brought on the same cause of action. But Explanation to Order 22 rule 9 of the Code of Civil Procedure which has been inserted by Act No. 104 of 1976 provides that nothing in the rule shall be construed as barring in any later suit a defence based on facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order. The effect of the Explanation is that in the subsequent suit, defendants (plaintiffs in the previous suit) can set up the same rights in defence. In this regard, reference may also be made to a Full Bench decision of this Court in Galpat Singh v. Sudhan (Died) represented by LRs. Hukam Chand, AIR 1985 Pb. 135, wherein it has been held that the unsuccessful plaintiff in the earlier suit which had abated, is not debarred from raising the same pleas as defendant in any subsequent suit relating to the same subject matter. No other point has been urged. Consequently, the appeal being without any merit shall stand dismissed. Appeal dismissed.