GHURAIE Vs. AKALEY

JUDGEMENT

(1.) Heard learned Counsel for the petitioner and learned Counsel for the respondents. By means of this writ petition, the petitioner has challenged the order of the Trial Court upon an objection raised by the petitioner in suit No. 516 of 1997 that the suit is a second suit and is barred under Order IX Rule 9. The said objection was rejected by the Trial Court against which a revision was preferred and the revisional Court has also rejected the revision of the defendant-petitioner. Hence, this writ petition. The claim of the petitioner is that the respondents had filed a suit for permanent injunction in respect of a property said to have been allotted to it by the Gaon Sabha. The said suit was numbered as Suit No. 5 of 1995 with a prayer that the defendant alongwith two others be restrained from interfering with the possession of the property in question. The said suit was proceeded with and the issues were framed. However, on the date fixed the plaintiff did not appear but the petitioner-defendant was present and the suit was dismissed under Order IX Rule 8.

(2.) The petitioner therein filed an application for recall under Order IX, Rule 9. In the recall application, the petitioner stated that the Trial Court rejected the application by order dated 24.1.1998 whereas the case was fixed on 19.4.1996 for taking steps for service upon defendant No. 3 and after taking steps on 20.4.1996, the orders were reserved. The Court below has rejected the story set up by the plaintiff and has recorded a finding that the plaintiff was fully aware that proceedings were fixed for 19.4.1996. On that date, inspite of knowledge the plaintiff did not show up whereas the defendant-petitioner was present and after recording detailed finding, the Trial Court rejected the application. It is noteworthy that the plaintiff respondents did not challenged this order which has thus become final.

(3.) It is stated that another suit being Suit No. 516 of 1997 was filed in respect of same property. In this second suit petitioner-defendant who was also defendant in the earlier suit took an objection that for the same subject-matter, between the same parties, the plaintiff had earlier filed the suit which was dismissed under Order IX, Rule 8 and therefore, the second suit is barred under Order IX, Rule 9. The said objection of the petitioner-defendant was rejected on the ground that the orders have not been passed on merits and therefore, the second suit is not barred. The Revisional Court had also held the same.