MAHARANA Vs. RAM BUX

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against an order of the Additional District Judge, Tonk, dated 4th November, 1976 by which he set aside the judgment and decree passed by the Munsif, Tonk, dated 20th October, 1975, and has remanded the case with a direction to record evidence and then to decide the case afresh.

(2.) THE brief facts of the case are that the respondent Ram Bux filed a suit for permanent injunction against the defendant appellants on the ground inter alia that the plaintiff had a Nohra in the village Pabadi Tehsil Newai in which he had a right of passage through the land described in the plaint. THE defendants be restrained by issuing a permanent injunction not to interfere with the right of way of the plaintiff and not to make any construction. It was further prayed that whatever construction the defendants have made, may be demolished by issue of a mandatory injunction. THE defendants' main contention was that the plaintiff had no right of way and the land described in the plaint was the exclusive property of the defendants and as such no injunction could be issued against the defendants. It was further pleaded by the defendants that on the same ground a suit was filed by the plaintiff against the defendants in the year 1972 and the learned Munsif, Tonk by his judgment dated 22nd December, 1972, had decided all the issues against the plaintiff and had held that the plaintiff had no right of way and as such the said judgment and decree dated 22nd December, 1972, was res judicata in the present suit.

(3.) I have given my careful consideration to the arguments advanced by the learned counsel for both the parties Section 11 C. P. C. lays down the principles of res judicata according to which "no Court shall try any suit or issue in which the matter directly and substantially is in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. " There is no dispute that in case the direction in the earlier judgment as regards holding the suit being pre-mature and that the plaintiff was at liberty to file a fresh suit would not have been there it was res judicata for the fresh suit. Thus the only controversy remains the following directions contained in the previous decree dated 22nd December, 1972, "suit is dismissed with costs against the plaintiff in favour of the defendants. The suit is premature. The plaintiff is at liberty to filed a fresh suit. " As regards the power of a court to allow the plaintiff to withdraw the suit with liberty to file a fresh suit the only provision contained in C. P. C. is under order 23 rule 1 C. P. C. Such power is not absolute and ran only be exercised when an application in this regard is made by the plaintiff and the court is satisfied that a suit must fait by reason of some formal defect or that there were sufficient grournds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. The learned counsel for the respondent has not been able to show that any application for withdrawing the suit with liberty to file a fresh suit was filed by his client in the earlier suit. There is no mention of such application in the previous judgment and it so seems that the court while holding the suit to be pre mature granted a liberty to the plaintiff to file a fresh suit. This direction is contained in the last portion of the judgment. In this view of the matter when there was no formal application under order 23 rule 1 C. P. C. for withdrawal of the suit such ramark cannot amount to a permission to bring fresh suit under order 23 rule 1 C. P. C. It can also not be inferred that the court while granting such permission was alive with the grounds contained in order 23 rule 1. I am fortified in my above view by the decisions of Fateh Singh vs. Jagannath Baksh Singh (1) and Robert Watson & Go vs. The Collector of Zilla Rajshahye (2) Dost Mohammed Khan Chowdhry. Rence Anundomoye and Horace John Abbott (3 ).