HIGH COURT OF RAJASTHAN
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(1.)THIS second appeal has been filed by the defendants against whom the respondents' suit for a declaration and permanent injunction was decreed by the first appellate court (Additio-nal Commissioner, Jaipur) after reversing the original decree of the S. D. O. Bharatpur whereby the suit was decreed in respect of a few numbers only and was dismissed in respect of the others.
(2.)WE have heard the learned counsel for the parties and have examined the record as well. To appreciate the point involved for determination in the case it is necessary to refer to the litigation that took place between the parties prior to the institution of the present suit. The respondents instituted a suit in the court of the S. D. O. Bharatpur on 8 8-56 for a declaration and a permanent injunction in respect of the land in dispute. Subsequently a second suit, which has given rise to this second appeal, was instituted by them against the same persons in respect of the same cause of action on 25. 8. 56. On 30. 8. 56 an application was presented in the trial court for permission to withdraw the first suit which was granted and the defendants were informed not to appear on the date fixed in that case for hearing. In the present suit the defendants raised the plea that the suit was not maintainable. The trial court did not record any clear finding on this point but merely satisfied itself with the observation that the facts proved in the case revealed that the plaintiffs were capable of any misrepresentation in order to serve their interests. The defendants had also pleaded that the plaintiffs had voluntarily relinquished their tenancy over 19 Khasra numbers and that they were in possession only upon the residuary 7 Khasra numbers. Hence the suit was dismissed in respect of 19 Khasra numbers and was decreed in respect of the other 7 only. The plaintiffs went up in appeal before the Additional Commissioner. As for the plea of relinquishment it was observed by the learned Additional Commissioner that the evidence led was absolutely inadequate to justify a finding in favour of the defendants and that the circumstances of the case rendered the version of the defendants highly incredible. As for the maintainability of the suit, the lower court after noting the ruling cited by the parties merely observed that in view of the fact that permission to withdraw was obtained by the plaintiffs even after the institution of the present suit it was a technical defect not potent enough to justify a rejection of the present suit. The appeal was accordingly allowed and the suit was decreed in full.
The first and foremost question to be determined in this second appeal relates to the maintainability of the present suit in view of the circumstances mentioned above. It has not been disputed before us that the previous suit was instituted by the same plaintiffs against the same defendants in respect of the same land in dispute for the same relief. It is also admitted that the present suit was filed during the pendency of the first suit as permission to with-draw the first suit came only on 30. 8. 56, the present suit having been instituted on 25. 8. 56. We may refer to a Full Bench decision of the Lahore High Court reported in A. I. R. 1947 Lahore 102 which lays down the principles which should govern such cases. In that case a suit was filed by a land holder against his tenants for a declaration regarding the use of manure. After the framing of the issues the plaintiff produced a number of witnesses and as some of the witnesses gave unfavourable evidence the plaintiff brought another suit against the same defendants for the same reliefs and on the same cause of action. The first suit was allowed to be dismissed in default. The defendants in the second suit raised the plea of maintainability and the trial court held that the suit was not maintainable. The first appellate court held that O. 9, R. 9, precluded a plaintiff from bringing a fresh suit in respect of the same cause of action after his suit had been dismissed under O. 9, R. 8 and where no such dismissal had taken place there could be no bar under the law to the institution of the second suit. The matter went up in appeal before the High Court. The case law was examined extensively and it was held that though the second suit could not be dismissed as barred under O. 9, R. 9, it is liable to be dismissed as offending against the well-known maxim that no-one shall be twice vexed with one and the same cause of action and also on the ground of its institution and trial amounting to an abuse of the process of the court. A similar view was taken by a Single Judge of the Punjab High Court in A. I. R. 1952 Punjab 144 though stress was laid in that case upon its particular circumstances. In the present case no explanation whatsoever has been offered as to why was it considered necessary to institute a second suit and on what grounds it was thought essential to seek a withdrawal of the previously instituted one. The plaintiffs could and should have prosecuted their first suit in the manner in which they applied themselves to the subsequent suit. It is true that in the first suit there was no trial of issues arising between the parties and consequently there is no decision which can operate as res judicata. But to prevent the defendant from being harassed unnecessarily a second time on the same cause of action the law prescribes that the plaintiff could not sue again on the same cause of action unless the suit is withdrawn under O. 23, R. 1, of the C. P. C. Sub-sec. (3) provides that where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub-rule (2) of O. 23, R. 1, he shall be precluded from instituting any fresh suit in respect of such matter or such part of the claim. On the date the second suit was filed it is obvious that the plaintiffs were not permitted to withdraw from the first suit and hence the institution of the second suit should be deemed to be hit by these express provisions of law. We, therefore, bold that the plaintiffs respondents having failed to obtain any permission of the court to withdraw from first suit were precluded to institute the second suit which forms the subject-matter of this appeal and as such the decrees of the lower courts deserve to be set aside. The suit should stand dismissed throughout.
In view of the finding arrived at above, it would be unnecessary to examine as to whether the defendants appellants did or did not voluntarily surrender their holding.
The result is that the appeal is allowed, the decrees of the lower courts are set aside and the suit instituted by the respondents shall stand rejected. Parties shall bear their own costs throughout. .
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