ATTAU RAHMAN MASOODI,J. - (1.) Heard Sri B.K. Saxena, learned counsel for the appellant and Sri I.D. Shukla, learned counsel who has put in appearance on behalf of respondents no. 1, 3, 4, 5, 6/1 and 7. Sri Adnan Ahmad, learned counsel has put in appearance on behalf of respondent no. 8.
(2.) Insofar as the respondent no. 2 is concerned, he died during pendency of this second appeal and an application for substitution of his legal heirs was filed which has been allowed by a separate order passed on 20.5.2019 and the incorporation of the legal heirs has accordingly been allowed to be carried out. Notice to the legal representatives of respondent no. 2 having been served is deemed sufficient.
(3.) In view of the fact that the appeal has already been admitted and substantial questions of law framed by order dated 7.5.2019, the procedural requirement as prescribed under Order LXI Rule 2 is treated to have stood met with and addition of grounds through a separate application is hereby dispensed with. The substantial questions of law that have arisen for consideration, may be extracted below: "(i)Whether the earlier suit inter parties (Regular Suit No.173 of 1970) having been withdrawn with liberty to file fresh suit and the fresh suit having been filed after complying with the conditions provided in the order permitting the withdrawal of the suit, the incidental orders including the order of partial abatement of the earlier suit will not become ineffective and inoperative after the withdrawal of the suit with liberty to file fresh suit? (ii)Whether after the withdrawal of the suit with liberty to file fresh suit, the order passed in the suit will survive even after the withdrawal and will create a bar of order 22, Rule 9 CPC in the subsequent suit? (iii)Whether the earlier suit having been contested jointly by the defendants and joint interest having been asserted, the lower appellate court even after recording a finding that the defendants' family was a joint Hindu family and defendant no.1 was Karta, the subsequent suit, will not be maintainable and the provisions of Order 22, Rule 9, Code of Civil Procedure, will be applicable to the subsequent suit?" Before embarking on the substantial questions of law, as aforesaid, it may be apt to put on record that previously Regular Suit No. 273 of 1970 was admittedly filed through guardian by the plaintiff, appellant herein. The suit proceedings were initiated on 25.11.1970 impleading therein one Shiv Shankar as defendant no. 1 and Chandra Bhan as defendant no. 2 whereas Thakur Rajeshwari, Shri Sita Ram Ji Virajman Mandir through Sarwarahkar was impleaded as defendant no. 3. Regular Suit No. 273 of 1970 was filed for possession of the property in dispute. It is gathered that defendant no. 2, namely, Chandra Bhan died during pendency of Regular Suit No. 273 of 1970. An application for substitution of the legal heirs of Chandra Bhan (defendant no. 2) was filed by the plaintiff on 18.12.1974 which the trial court rejected by order dated 5.9.1975. The order passed by the trial court rejecting the said substitution application gave rise to Misc. Appeal No. 78 of 1975 under Order XLIII Rule 1(k) CPC. The appeal so filed by the plaintiff, appellant herein, was dismissed by order dated 4.5.1976. It may be noted that the plaintiff, appellant herein, had claimed his rights on the basis of a registered lease deed dated 25.4.1970 whereas the defendants, namely, Shiv Shankar and Chandra Bhan had claimed their rights on the basis of an Ijazatnama conferred by the erstwhile landlord in the year 1958. The alleged Ijazatnama was, in fact, in favour of Shiv Shankar which was taken benefit of by all the family members including defendant no. 2 who had died during pendency of the suit. ;