DINO NATH SIKDAR Vs. ANADI KRISHNA DUTT

JUDGEMENT

(1.) This is an appeal by the Defendants in a suit instituted by their landlords for the correction of an entry made in a record-of-rights regarding their status. The record-of-rights was finally published on the 29 May 1914. On the 27 August 1914, the landlords instituted a suit under Section 108 for the correction of the entry. On the 9 March 1915 they were permitted to withdraw the suit under Section 106 with liberty reserved to them to institute a fresh suit if not barred. They did not institute a fresh suit under Section 106; on the other hand on the 27 March 1915 they instituted the present suit in the Court of the Subordinate Judge for precisely the same relief as that claimed by them in the suit under Section 106. We have compared the claim as set out in the present plaint with that in the suit under Section 106, and we have found that they are expressed in identical language. The prayer is for correction of an entry in the record-of-rights regarding the status of the Defendants. In these circumstances the question arises whether the suit is or is not barred under the provisions of Section 109.

(2.) Section 109 provides that subject to the provisions of Section 109A, Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Secs.105 to 108 both inclusive. There can be no controversy that the present suit concerns a matter which formed the subject of the suit previously instituted under Section 106. Prima facie therefore according to the plain language of Section 109 the suit is, barred. The Plaintiffs contend, however, that Section 109 is not applicable, because as they were permitted to withdraw the previous suit the position is exactly the same as it would have been if the previous suit had never been instituted. This is contrary to the language of Section 109 and is opposed to the decision in Sreemati Abeda Khatun V/s. Majubali Chowdhury [1920] 24 C.W.N. 1020, where the earlier authorities will be found reviewed. We are of opinion that the salutary provisions of Section 109 should be strictly enforced and not whittled down. In the case before us the Plaintiffs could and should have availed themselves of the liberty reserved under the order of the 29 March 1915 to institute a fresh suit under Section 106. This they have not done, and they cannot be permitted to evade; the provisions of Section 109.

(3.) The result is that this appeal is allowed, the decree of the Court below set aside and the suit dismissed with costs in all the Courts, on the ground that it is barred under the provisions of Section 109.