RANA AMAR CHAND Vs. RAM LAL

JUDGEMENT

(1.) THIS is a plaintiffs second appeal against the judgments and decrees of the courts below dismissing the plaintiffs suit on a preliminary ground, namely, that the present suit was barred by 0.9 r. 9 of the Civil P. C.

(2.) THE present suit was brought by the plaintiff on 17 -10 -C2 in respect of the lands in dispute which comprise survey Nos. 02,34, 184, 226, 354, 362 528, 657, 434, 266, 270 min. 785,770 and 785 min situate in village Khulhand Tehsil Doda on the ground that the plaintiff was the owner of these lands and the defendants had by playing fraud and taking advantage of the absence of the plaintiff got some wrong mutations made and forcibly dispossessed the plaintiff in Kharif 2011. The defendants being trespassers, the plaintiff prayed for a decree for possession by ejecting them from the lands in dispute. It appears that a suit on almost similar allegations was brought by the plaintiff on 1st Phagon 2011 wherein the plaintiff has alleged that in his absence the defendants got some false mutations made in collusion with the Patwari and entered into unlawful possession of the land in Har 2010 and being trespassers they were entitled to be ejected by the court. The previous suit appears to have been dismissed on 10 -8 -58 for the non -appearance of the plaintiff. No application for setting aside the order dismissing the suit for default was made by the plaintiff under 0.9 r. 9 of the Civil P.C. but instead a fresh suit was filed on 17 -10 -62 which was dismissed by the Munsiff Doda on the ground that the present suit was barred under 0.9 r. 9. The plaintiff then went up in appeal to the District Judge who dismissed the appeal by his order dated 7 -6 -72. Hence the second appeal before me.

(3.) MR . J.S Kotwal appearing for the appellant has raised a very ingenious and interesting point of law before me. He has submitted that the courts below were wrong in holding that the causes of action for the two suits were identical. Secondly he contended that even if causes of action in the two suits were the same, since the act trespass is a continuing wrong, a fresh suit could not be barred under 0.9 r. 9 of the Civil P.C. The learned Advocate for the respondents, however, submitted that reading the two plaints together, the causes of action in both the suits are substantially the same and therefore the present suit is clearly barred by the express provisions of 0.9 r. 9 of the Civil P. C, The learned counsel for the respondents relied on a decision of the Supreme Court in AIR 1965 SC 295. As the two points raised by the counsel for the appellant are inter -connected, I would like to deal with them together. Before, however, discussing the points raised before me, it will be necessary to examine the provisions of 0.9 r. 9 of the Civil P. C. the relevant part of which runs as follows: "Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded form bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal, aside, and if he satisfies the Court that there was sufficient cause for his non -appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."