2008(6) ALL MR 309
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

B.P. DHARMADHIKARI, J.

M/S. Swastik Complex Pvt. Ltd.Vs.Dr. Prafulla S/O. Jageshwar Mukaddam & Ors.

Civil Revision Application No.385 of 2001

10th September, 2008

Petitioner Counsel: S/Shri. M. W. CHARDE,O. W. GUPTA
Respondent Counsel: Shri. S. P. PALSHIKAR,Shri. ABHAY SAMBRE

Civil P.C. (1908), S.11, O.2, R.2, O.7, R.11 - Second suit on basis of cause of action in earlier suit is barred - Liberty given by Court in earlier suit to file second suit - Cannot override provision of law.

If the law permits, plaintiff may file another suit but not on the basis of observation made by superior Court. The language of Order 7, Rule 13 of Civil Procedure Code, is very clear and plaintiff could not have filed a suit on same cause of action in present matter. The liberty given by Court 6th cannot override the provisions of Order 7, Rule 13 of Civil Procedure Code or provisions of Order 2, Rule 2 of Civil Procedure Code or then provisions of Section 11 of Civil Procedure Code. [Para 13]

Cases Cited:
Shiv Kumar Vs. Santosh Kumari, 2007(6) ALL MR 935 (S.C.)=(2007)8 SCC 600 [Para 5,13]
Narendra Vs. Atul Kumar, 2008(5) Mh.L.J. 420 [Para 6,8]


JUDGMENT

JUDGMENT :- Defendant No.1 in Regular Civil Suit No.1634 of 2000 has filed this Revision challenging rejection of his application below Exh.15 vide order dated 20.02.2001 by Second Joint Civil Judge, Junior Division, Nagpur. The objections raised to the maintainability of Regular Civil Suit No. 1634 of 2000 were in the light of earlier litigation vide Regular Civil Suit No. 1214 of 1998 and pointing out provisions of Order 2, Rule 2, Section 11 and Section 151 of Civil Procedure Code. That application has been rejected.

2. The revision applicant claims to be a Builder and Developer and he has constructed a complex on Plot No.21 and it is not in dispute that on front side as also on rear side of this plot, there are public roads. The grievance of the present non-applicants No.1 to 5, who filed Regular Civil Suit No.1634 of 2000, is in relation to public road of 40 feet width on rear side of said plot No.21. It appears that all plots located between these two public roads have got access on both roads. The non-applicants No.1 to 5 found that this access was creating congestion and, therefore, when plot No.21 was sought to be constructed upon by a Builder to raise a commercial complex, they raised some objection with the sanctioning authority i.e. Nagpur Improvement Trust, which is non-applicant No.7 in this revision. The sanctioning authority, therefore, imposed certain conditions upon revision applicant while granting sanction to his building plan. The conditions required him, not to have any access or opening on said 40' wide road located at the rear side of this plot and to construct a 7 feet high compound wall in that direction. The applicant started his construction after obtaining the above sanction but ultimately he also fixed an iron gate on rear side so that occupants can approach directly from plot No.21 on 40' wide public road. This led to filing of earlier Civil Suit No.1214 of 1998.

3. The said suit was filed by present non-applicants No.1 to 5 and in it present applicant filed an application under Order 7, Rule 11 of Civil Procedure Code, raising various objections to the maintainability of suit and particularly pointing out that as it was public road, abutting plot No.21, he had right to enjoy access to that road. 7th Joint Civil Judge, Junior Division, Nagpur, vide its order dated 16.11.1998 accepted the contention of applicant, allowed his application at Exh. 18 and therefore, rejected the plaint. This rejection was then questioned by present non-applicants No. 1 to 5 by filing Regular Civil Appeal No.109 of 1999 before 6th Additional District Judge, Nagpur. The appellate Court after hearing both sides concluded that no case was made out for interfering with the order under challenge before it. However, in para thereafter, it observed that the rejection of plaint would not bar or preclude the original plaintiffs from presenting a fresh plea when a cause of action actually accrues to them because of provisions of Order 7, Rule 13 of Civil Procedure Code. Taking advantage of this observation, the present Regular Civil Suit No. 1634 of 2000 came to be filed in relation to very same grievance. In this suit again vide Exh.15, the present applicant raised similar challenge and pointed out that as controversy stood concluded because of earlier adjudication, the new suit was barred. The Court of Second Joint Civil Judge, Junior Division, Nagpur, on 20.02.2001 dismissed that application by pointing out that the suit was protected because of findings of appellate Court already mentioned above.

4. In this background, I have heard Shri. Charde with Shri. Gupta, learned counsel for the applicant, Shri. Palshikar, learned counsel for non-applicants No.1 to 5 and Shri. Sambre, learned counsel for non-applicant No.7.

5. By pointing out the facts as mentioned above, Shri. Charde, learned counsel compares both plaints to demonstrate that new suit is based on same cause of action and is for same reliefs and, therefore, Order 2, Rule 2 read with Section 11 of Civil Procedure Code, 1908, is specifically applicable. He points out that even if it is presumed that in new suit, there are some additional grounds of attack, in view of explanation (iv) to Section 11 of Civil Procedure Code, the same must be held to be barred because of Principle of Constructive res judicata. He points out that as the applicant was sought to be vexed twice in same cause, it amounted to abuse of process of law and Court and hence such suit also needed to be dismissed under Section 151 of Civil Procedure Code. He relies upon the judgment of the Hon'ble Apex Court in the case of Shiv Kumar Vs. Santosh Kumari, reported at 2008(3) Mh.L.J. 593 (S.C.) : [2007(6) ALL MR 935 (S.C.)], to urge that the liberty given by the lower appellate Court in earlier round of litigation cannot be interpreted to mean that it permits something new to be done by non-applicants No.1 to 5. He states that Courts of law cannot and do not give such powers to parties and the liberty given has to be construed within the four corners of Civil Procedure Code only. He also points out that this Court has in the case of Narendra Vs. Atul Kumar, reported at 2008(5) Mh.L.J. 420, held that a plot holder having plot abutting a public road has right to approach the said public road from every inch of his plot and according to him, in these circumstances, the impugned order deserves to be quashed and set aside and plaint is liable to be rejected as per provisions of Order 7, Rule 11 of Civil Procedure Code.

6. Shri. Palshikar, learned counsel for non-applicants No.1 to 5 states that there are material differences between 1998 plaint and 2000 plaint. He points out that because of observations made by the trial Court in earlier round of litigation, in 2000 plaint, additional and further reliefs which were not sought for in earlier suit were also claimed and the controversy needs to be looked into in that perspective. According to him, there is nothing wrong with the conditions imposed by the Nagpur Improvement Trust and 2000 suit filed by non-applicants No.1 to 5, sought appropriate reliefs from the Court to force the present revision applicant to abide by those terms and conditions. He, therefore, states that the view taken by the trial Court calls for no interference in this Revision Application. He also points out that provisions of Order 7, Rule 13 of Civil Procedure Code specifically permit filing of Regular Civil Suit No.1634 of 2000 and in addition he heavily relies upon the liberty granted by 6th Additional District Judge, Nagpur, in his order dated 22.06.2000. He urges that neither the provisions of Order 2, Rule 2, nor provisions of Section 11 of Civil Procedure Code are, therefore, relevant. He further states that invoking Section 151 of Civil Procedure Code in present facts is not possible and there is no question of abuse of process of law. According to him, non-applicant No.7-Nagpur Improvement Trust has imposed certain conditions while sanctioning building plan of present applicant and those conditions have been imposed in public interest and are still in existence and therefore the cause of action still continues and new suit must be held to be maintainable.

7. Shri. Sambre, learned counsel for non-applicant No.7 states that the Regular Civil Suit No.1634 of 2000 came to be filed without first serving mandatory statutory notice as contemplated by Section 115 of Nagpur Improvement Trust Act, and an objection about this deficiency was raised by Nagpur Improvement Trust before the Trial Court. He contends that until and unless such notice is first served, Civil Court does not get jurisdiction to take cognizance of the matter and hence the plaint ought to have been returned for absence of such notice. He argues that as this ground was raised before trial Court and as trial Court has not considered it, in revision this Court can order return of plaint for failure to serve suit notice.

8. As already stated above, the facts are not in dispute. The right of revision applicant to approach public road also is not in dispute. The learned counsel for the applicant has cited some judgments to show how that right has been judicially recognized. Many such judgments are considered by the 7th Joint Civil Judge, Junior Division, Nagpur, while allowing application at Exh. 18 in Regular Civil Suit No. 1214 of 1998 on 16.11.1998. This Court also has in judgment in Narendra Vs. Atul Kumar (supra) had occasion to consider such controversy and in paragraph 10, a finding in favour of revision applicant has been recorded.

9. Shri. Palshikar, learned counsel has tried to urge that the said judgment has got no relevance because there the road in relation to which the right was sought to be exercised was in a private unsanctioned lay out and issue was answered by the trial Court as also by the lower appellate Court after appreciation of evidence. According to him, it was not under Order 7, Rule 11 of Civil Procedure Code. It is no doubt true that said judgment has been delivered in Second Appeal but then the right of a person to approach a public road has been recognized and as such I find that distinguishing features sought to be canvassed by Shri. Palshikar, learned counsel, have got no bearing insofar as this aspect is concerned.

10. The question in Regular Civil Suit No.1214 of 1998 was whether such right was available to present applicant. The present non-applicants No.1 to 5 had filed that suit for denial of said right to present applicant. The terms and conditions in the sanction granted by the Nagpur Improvement Trust were pressed into service and have been considered by 7th Joint Civil Judge, Junior Division, Nagpur. The said Court has in paragraph 10 found that the said terms and conditions as contained in the alleged agreement entered into by defendant are not at all valid and agreement is not an enforceable contract. The said Court specifically observed that the plaintiffs have no right to enforce such type of agreement which is contrary to law. The right of defendant to ingress and egress to public street, which is on the rear side of plot No.21 of the defendant, cannot be curtailed by any authority. The trial Court, therefore, observed that suit was premature and provisions of Order 7, Rule 11 of Civil Procedure Code, were therefore required to be invoked to dismiss it at the threshold itself. These observations and findings have been maintained by 6th Additional District Judge, Nagpur, while dismissing the appeal preferred by present non-applicants No.1 to 5 against these findings.

11. Though the trial Court has observed that suit was premature, it is apparent that the trial Court has found that there was no legal enforceable right in favour of plaintiffs before it and therefore, it was necessary to invoke Order 7, Rule 11 of Civil Procedure Code. The effort of Shri. Palshikar, learned counsel to demonstrate that such a right was not available in present facts to present applicant is misplaced in present proceedings because that effort was relevant only in Regular Civil Suit No.1214 of 1998 or then in Regular Civil Appeal No.109 of 1999. These arguments have not been advanced or in any case have not been considered either in Regular Civil Suit No.1214 of 1998 or in Regular Civil Appeal No.109 of 1999. The above findings in paragraph 10 by the 7th Joint Civil Judge, Junior Division, Nagpur, therefore, became final and conclude the controversy between the parties.

12. The lower appellate Court has on 22.06.2000, while dismissing Regular Civil Appeal No.109 of 1999, observed in para 22 as under:

"22. At the same time before I conclude, I would like to point out that the order of rejection of the plaint would not bar or preclude the plaintiffs from presenting afresh plea, in respect of the cause of action, when it actually accrues to him, by virtue of Rule 13, Order 7, C.P.C."

These observations are, therefore, because of provisions of Order 7, Rule 13 of Civil Procedure Code and cannot be read in isolation. Order 7, Rule 13 clearly stipulates that rejection of plaint under Order 7, Rule 11, cannot of its own force preclude the plaintiff from presenting a fresh plaint in respect of same cause of action. It is, therefore, obvious that said rejection of "its own force", cannot preclude non-applicants No.1 to 5 from filing a fresh plaint in respect of same cause of action. However, the words .of its own force. in said rule assume importance. The trial Court had in paragraph 10 recorded a finding which held that the non-applicants had no right to enforce said condition and the right of present applicant to approach 40 feet wide public street on rear side of plot No.21 could not be curtailed by any authority. The reference obviously was to the authority which granted sanction to the plan by imposing those conditions viz., present non-applicant No.7 - Nagpur Improvement Trust. These findings, therefore, operate and prohibit filing of any subsequent suit and, therefore, the liberty expressed by the lower appellate Court on 22.06.2000 needs to be understood in this background.

13. The lower appellate Court has only mentioned provisions of law and has held that suit can be filed in accordance with those provisions. However, then lower appellate Court cannot be said to have said that said suit will be maintainable and will not be liable to be rejected under Order 7, Rule 11 of Civil Procedure Code, if the requirements of Order 7, Rule 11 of Civil Procedure Code were met with. The findings in paragraph 10 by the trial Court while allowing earlier application at Exh.18 in earlier Regular Civil Suit No.1214 of 1998 have become final. It is to be noticed that said order under Order 7, Rule 11 of Civil Procedure Code has got the force of decree and as such a second suit on same cause of action, which has the effect of re-agitating those issues or amount to an effort to have those issues reopened, cannot be countenanced. The judgment of the Hon'ble Apex Court in the case of Shiv Kumar Sharma Vs. Santosh Kumari (supra) (equivalent to (2007)8 SCC 600 : [2007(6) ALL MR 935 S.C.)]) clearly clinch the law on the point. The Hon'ble Apex Court there has laid down that such liberty or leave given by a Court needs to be understood in the background of provisions of law. There the provisions of Order 2, Rule 2 of Civil Procedure Code, were found relevant and the Hon'ble Apex Court observes that a Civil Court cannot grant a leave to file another suit. If the law permits, plaintiff may file another suit but not on the basis of observation made by superior Court. Here, the language of Order 7, Rule 13 of Civil Procedure Code, mentioned above is very clear and non-applicants No.1 to 5 could not have filed a suit on same cause of action in present matter. The liberty given by 6th Additional District Judge, Nagpur, on 22.06.2000 cannot override the provisions of Order 7, Rule 13 of Civil Procedure Code or provisions of Order 2, Rule 2 of Civil Procedure Code or then provisions of Section 11 of Civil Procedure Code.

14. Even if it is presumed that there was some difference in prayers made in the plaint in Regular Civil Suit No.1214 of 1998 or in the plaint in Regular Civil Suit No. 1634 of 2000, it is abundantly clear that design of non-applicants No.1 to 5 (plaintiffs in both suits) was to prohibit present applicant from having an access on rear side of plot No.21 to enable him to approach public road having 40 feet width located on rear side of that plot. Thus, both suits were for the same purpose and between the same parties and in relation to the same grievance and cause of action. It is obvious that if any additional grounds are sought to be raised in Regular Civil Suit No.1634 of 2000, the same were, therefore, available at the time of filing of Regular Civil Suit No.1214 of 1998. When plaint in Regular Civil Suit No.1214 of 1998 was rejected, all contentions available to present non-applicants No.1 to 5 in support of their grievance must be presumed to have been rejected and it was not open to them to file another suit for very same relief by taking shelter of some additional grounds. The plaint in Regular Civil Suit No.1634 of 2000 is, therefore, barred by provisions of Order 2, Rule 2 of Civil Procedure Code, by provisions of Section 11 of Civil Procedure Code and by provisions of explanation (iv) of said Section 11.

15. The contention of Shri. Charde, learned counsel that the second suit constitute unnecessary vexing, therefore, needs to be upheld. However, it cannot be held that provisions of Section 151 of Civil Procedure Code, will become applicable on that count. The provisions of Civil Procedure Code contain procedure and the Legislature has taken care to provide for situations in which such second suit can be filed and cannot be filed. The provisions of Section 151 of Civil Procedure Code, which contain residuary powers, therefore, cannot be invoked to expand those specific provisions and to cover situations not contemplated therein.

16. In the circumstances, I find that there is failure on the part of 2nd Joint Civil Judge, Junior Division, Nagpur, to exercise jurisdiction available to it and order dated 20.02.2001 passed below Exh.15 in Regular Civil Suit No.1634 of 2000, therefore, needs to be quashed and set aside. The application at Exh.15 needs to be allowed and the plaint is liable to be rejected under Order 7, Rule 11 clauses (a) and (d) of Civil Procedure Code. Accordingly, Civil Revision Application is allowed and the plaint in Regular Civil Suit No.1634 of 2000 stands rejected. However, in the circumstances of the case, there shall be no order as to costs.

Revision Application allowed.