SCC Online Web Edition, Copyright © 2020

Page 1 Monday, January 13, 2020

Printed For: Argus Partners
SCC Online Web Edition: http://www.scconline.com

-----------------------------------------------------------------------------------------------------------------------------------------------------------
-

RSA No. 38 of 1999

State of H.P. v. Achhru Ram

2010 SCC OnLine HP 2108 : AIR 2011 HP 19

(BEFORE SURJIT SINGH, J.)

State of H.P. .…. Appellant

v.
Achhru Ram (dead) through LRs .…. Respondent
For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General.
For the Respondent : Mr. Ramakant Sharma, Advocate.
RSA No. 38 of 1999
Decided on July 16, 2010

Surjit Singh, J (Oral)

The present Regular Second Appeal, by the defendant, i.e. State of Himachal Pradesh,
was admitted on the following substantial questions of law:

“1. Whether the present suit of the plaintiff was not maintainable in view of the fact
that a suit was filed earlier on the same cause of action which was dismissed as
withdrawn under Order 23 Rule 1 C.P.C.?

2. Whether the suit of the plaintiff was not within limitation as the grant was cancelled
by the Deputy Commissioner, Divisional Commissioner and Financial Commissioner on
21.5.84, 26.6.85 and 26.11.1985 respectively and the suit was filed on 25.2.1988 as
the period of limitation is one year?

3. Whether right to object is a personal right and as such after the death of the
objector the legal representatives are not required to be impleaded as party?

2. Plaintiff-respondent Achhru Ram was granted five bighas of land, under Nautor
Rules, in the year 1974. Patta was issued in his favour. The very next year, an appeal
was filed by one Bagwan Dass (now dead), before the Deputy Commissioner, alleging
that respondent was not eligible for grant of Nautor, on account of his income being
more than Rs. 2,000/- per month and he being a member of a family headed by his
father. That appeal was allowed and Nautor granted in favour of the respondent was
revoked. Achhru Ram filed further appeal and the revision, but without success.

3. Thereafter, the plaintiff filed a suit, i.e. Civil Suit No. 62/1 of 87, seeking declaration
that Nautor granted to him was valid and that the orders passed by the Deputy
Commissioner, the Divisional Commissioner and the Financial Commissioner, revoking
the grant, were illegal, void and ineffective qua his rights. He withdrew that suit, by
making a statement and the same was dismissed as withdrawn on 26th November,
1987, vide order Ex. DF. Statement regarding withdrawal of the suit, which he made,
is Ex. DG. Thereafter, he filed another suit, though he had not obtained any
permission, at the time of withdrawal of the earlier suit, to file a fresh suit. It is out of
that suit that the present appeal has arisen. In the suit, he sought the same
declaration, which had been sought in the earlier suit.
 SCC Online Web Edition, Copyright © 2020
Page 2 Monday, January 13, 2020
Printed For: Argus Partners
SCC Online Web Edition: http://www.scconline.com

-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
4. Suit was contested by the defendant-appellant, both on merits and also on some
technical grounds, including the plea that the plaintiff-respondent was precluded from
filing fresh suit, on account of the withdrawal of the earlier suit. Respondent filed
replication, in which he stated that the earlier suit had been withdrawn, with leave to
file a fresh one on the same cause of action.

5. Various issues were framed by the trial Court. One of the issues pertained to
resjudicata. Judgment of the trial Court shows that plea of resjudicata was sought to
be supported by the evidence, regarding withdrawal of the earlier suit, by means of
statement Ex. DG. Trial Court rejected the plea, with the observation that withdrawal
of the earlier suit made no difference. Issues based on merits were found in favour of
the respondent-plaintiff and consequently the suit was decreed.

6. Appeal filed by the State in the Court of District Judge has been dismissed. Though
a specific ground was not raised, before the District Judge, with regard to the suit
being barred, on account of the withdrawal of the earlier suit, but finding on the issue,
pertaining to resjudicata, was assailed.

7. I have heard the learned counsel for the parties and gone through the record.

8. It is not in dispute that the earlier suit was also based on the same cause of action
as the present one and the relief claimed in the two suits was also the same. Copy of
the plaint, in the earlier suit, is also there on record, which is Ex. DE. A reading of the
plaint shows that the relief claimed in the earlier suit was the same, as in the present
suit and the cause of action pleaded was also the same. Statement Ex. DG shows that
permission of the Court was not sought to file a fresh suit on the same cause of action,
when the statement of withdrawal of the earlier suit was made. Order, dismissing the
earlier suit as withdrawn, copy Ex. DF, also does not speak of any permission having
been granted to the plaintiff-respondent.

9. In view of the abovestated position, substantial question of law No. 1 is answered in

favour of the defendant-appellant and it is held that the suit, out of which the appeal
has arisen, was barred, under Order 23 Rule 1 & (4)(b) of the Code of Civil Procedure.

10. Since the plaintiff was precluded from filing the suit, as held hereinabove, other
substantial questions of law, on which the appeal was admitted, become irrelevant.

11. As a result of the above discussion and answer to substantial question of law No.
1, appeal is accepted, judgments and decrees of the two Courts below are set aside
and the suit of the plaintiff-respondent is dismissed.

Appeal stands disposed of accordingly.

July 16, 2010(sd) (Surjit Singh), J

———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

© EBC Publishing Pvt.Ltd., Lucknow.