Judgment:
Borde R.M., J.
1. This is an appeal by original defendant challenging the concurrent judgments recorded by the courts below.
2. Plaintiff-respondent herein instituted Regular Civil Suit No. 181 of 89 claiming redemption of mortgage and recovery of possession as well as reconveyance of the document. Plaintiff is the original owner of the property Bearing Suit Nos. 19/2 and 19/11, now consolidated in G. No. 407, admeasuring 25 ares and 32 ares respectively situate at village Kanad. Plaintiff was in need of Rs. 5000/-. As such, he approached the defendant for advancement of amount. Defendant agreed to advance the amount, however, on execution of a conditional registered sale-deed by the plaintiff in his favour. Plaintiff, as such, executed a conditional sale deed and it was agreed that after completion of five years, plaintiff would pay Rs. 5000/- to the defendant and defendant would reconvey the property in favour of the plaintiff. Plaintiff contends that he had paid an amount of Rs. 3175/- to the brother of the defendant and presented Regular Civil Suit No. 94 of 86 against the defendant for reconveyance. But the said suit was withdrawn as it was premature. Plaintiff was ready to pay Rs. 5000/ - to the defendant and asked the defendant to reconvey the property. However, defendant refused to do so. Hence plaintiff instituted instant suit requesting the defendant for redemption of mortgage as well as for execution of reconveyance deed and delivery of the property in favour of the plaintiff.
3. In response to the suit summons, defendant appeared and resisted the suit. Defendant admitted execution of the document dated 4.5.1983. However, he contended that period prescribed under the document came to an end on 4.5.1988. Thereafter defendant asked the plaintiff to pay back the amount and get the reconveyance deed executed. However, plaintiff was not in a position to repay the amount. It is, therefore, contended that in view of the terms recorded in the said document, conditional sale has to be treated as absolute one on expiration of the period prescribed in the document. Defendant, as such, prayed for dismissal of the suit.
4. The trial Court, after considering pleadings of the parties, framed as many as four issues and after receiving evidence led by the parties, came to the conclusion that plaintiff has established his case and as such granted decree in favour of the plaintiff by judgment and decree dated 21.1.1993. The trial Court recorded a finding that the plaintiff has proved that the defendant has refused to deliver the property in his favour so also the trial Court has recorded a finding in affirmative in respect of the issue, as to 'whether the plaintiff was and is ready and willing to perform his part of the contract'. The trial Court also recorded a finding that the plaintiff is entitled to redemption as claimed and as such decreed the suit.
5. Defendant, being aggrieved by the judgment and decree passed by the trial Court, preferred Regular Civil Appeal No. 12 of 1993 which came to be heard and disposed of by the Additional District Judge, Parbhani, who was pleased to dismiss the same by his judgment and decree dated 4.12.2000. The only point canvassed before the first Appellate Court was regarding drawing of a preliminary decree in respect of redemption of mortgage.
6. It was urged by the appellant before the first Appellate Court that the trial Court should have passed a preliminary decree for redemption of mortgage and the decree passed by the trial Court does not confirm to characteristics of preliminary decree for redemption. The only request that was made before the first Appellate Court by the appellant was to remit the matter back to the trial Court for passing appropriate preliminary decree. The first Appellate Court found favour with the appellant. However, in view of the powers invested with first Appellate Court, the Court passed appropriate preliminary decree by allowing the appeal partly. Defendant has challenged concurrent judgments recorded by the courts below by presenting instant second appeal.
7. The appeal came to be admitted for consideration of Grounds Nos. I to IV set out in the memorandum of appeal, those are:
(I) When a suit bearing R.C.S. No. 94 of 1986 was filed by the plaintiff/respondent in the Court of Civil Judge, Junior Division, Jintur, for recovery of possession of the same suit land on 22.8.1986, and said Civil Suit was withdrawn by an application Exhibit-24 and by order dated 31.12.1987 without obtaining leave to institute another suit, therefore, the present proceedings i.e. R.C.S. No. 181 of 1989 is barred by Order 23, Rule 1 of the Civil Procedure Code.
(II) When second suit for same relief is barred by provisions of Order 23, then it is to be considered as res judicata. This substantial question of law have not been considered by the Courts below in spite of the fact that a specific ground was taken before the lower Appellate Court.
(III) The plaintiff/respondent had also filed R.C.S. No. 42 of 1988 for recovery of the amount of Rs. 3175/- against the real brother of the appellant in respect of price of the same land and transaction as involved in present proceedings. The said Civil Suit No. 42 of 1988 is dismissed then second suit i.e. proceedings can not be instituted and ought to have been dismissed.
(IV) When the suit was withdrawn without permission to file fresh suit for the same relief as involved in the present proceedings, then Court below ought to have considered hurdle of Order 23 and principle of res judicata on the basis of peculiar facts and circumstances of the case. Non-consideration of the legal points as stated above resulted into miscarriage of justice and perversity.
8. The only point that was urged by the appellant is regarding maintainability of the instant suit presented by plaintiff being R.C.S. No. 181 of 89 in view of withdrawal of previous suit being R.C.S. No. 94 of 86. It is strenuously contended by the appellant that earlier suit being R.C.S. No. 94 of 86 was presented by the plaintiff against defendant seeking possession of the property which is subject-matter of the instant suit as well as for a declaration that the sale deed executed on 4.5.1983 in favour of the defendant be declared as nominal and same be cancelled. According to the defendant/appellant, in the instant suit also i.e. R.C.S. No. 181 of 89, relief is claimed in respect of recovery of possession of the suit property as well as for redemption of mortgage. Learned Counsel for the appellant contends that R.C.S. No. 94 of 86 was withdrawn unconditionally by the plaintiff and an order to that effect came to be passed below Exhibit 24, which was an application tendered by the plaintiff seeking withdrawal of the suit. Suit came to be withdrawn unconditionally as such, according to the appellant, in view of provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, instant suit is not maintainable.
9. It would be appropriate to refer to the provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, which reads as below:
1. Withdrawal of suit or abandonment of part of claim:
(1) At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, abandon his suit or abandon a part of his claim;
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,:
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff:
(a) abandons any suit or part of claim under Sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as to the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.
In view of Sub-rule (4) of Rule 1, Order XXIII C.P.C., where the plaintiff withdrew from a suit or part of the claim without the permission referred to in Sub-rule (3), he is precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. It has to be, therefore, determined as to what was the nature of the suit previously instituted and the instant suit.
10. A reference is made to two judgments in the case of (Thota China Subba Rao and Ors. v. Mattapalli Ors. Raju and Ors.) reported in A.I.R. 1950 F.C. 1; and in the case (Vishwa Nath v. Shakti Ram and Ors.) reported in , wherein it has been laid down that dismissal of earlier suit for redemption, whether abated or withdrawn or in default would not debar the mortgagor from filing a second suit for redemption and that such second suit and for that matter every successive suit for redemption to redeem the same mortgage can be brought so long as the mortgage subsists and the right of redemption is not extinguished by efflux of time or by a decree of the Court passed in the prescribed form. There can be no second opinion in respect of the proposition advanced.
11. If we peruse the document, which is the foundation for institution of the suit, i.e. unconditional sale deed at Exhibit 44, it would be evident that the said document has been executed by the plaintiff in favour of defendant on 4.5.1983 thereby transferring the suit property in favour of defendant for consideration of Rs. 5000/- for a period of five years. It is specifically mentioned in the document that the property has been transferred for a period of five years i.e. from 4.5.1983 to 3.5.1988 and the property was supposed to remain in possession of the defendant during such period. The defendant has agreed to reconvey the property after accepting the amount of Rs. 5000/- after expiration of the period. It is thus clear that the period covered by the deed Exhibit 44 was to come to an end on 3.5.1988. However, plaintiff instituted Regular Civil Suit No. 94 of 86 in the Court of Civil Judge, Junior Division, Jintur on 22.8.1986. Relief claimed in the suit was in respect of handing over of possession to the plaintiff as well as for a declaration that the sale-deed dated 4.5.1983 is nominal one and for cancellation of the same. The suit was obviously instituted prior to completion of the period of five years, as stipulated in the deed Exhibit 44. The cause of action for presentation of the suit, as mentioned in paragraph 5 of the plaint, is 31.7.1986. The plaintiff, in the said suit, did not claim redemption of the mortgage. Obviously, earlier suit being R.C.S. No. 94 of 86 was founded on the cause of action in respect of alleged refusal by the defendant to hand over possession on 31.7.1986. Moreover, the distinguishing feature is that plaintiff did not ask for redemption of mortgage and he could not have asked, as the period covered by the deed was yet to come to an end. Obviously, there fore, after an objection was raised by the defendant in respect of maintainability of the suit, plaintiff presented an application Exhibit 24 seeking withdrawal of the suit and the Court permitted plaintiff to withdraw the suit. Withdrawal of the earlier suit was unconditional.
12. If we peruse the plaint in instant suit i.e. R.C.S. No. 181 of 89, suit is filed for redemption of mortgage as well as for recovery of possession of the property. It is specifically stated in the plaint that the period prescribed under the registered conditional sale deed dated 4.5.1983 has come to an end and after completion of period of five years, plaintiff has got a right to redeem the mortgage and recover the possession. The date of cause of action, stated in the plaint, is 18.6.1989, when the defendant refused to redeem the mortgage after accepting the amount and further refused to deliver possession of the property. On perusal of the pleadings in both the suits, it is evident that both the suits are founded on different causes of action and are filed in totally different set of circumstances. The earlier suit i.e. R.C.S. No. 94 of 86 was restricted to claim in respect of possession. However, no relief in respect of redemption of mortgage was claimed. The plaintiff could not have asked for redemption of mortgage as the period prescribed under the deed of 4.5.1983 was yet to come to an end.
13. Considering the pleadings raised in both the suits as well as causes of action stated, it is quite clear that both the suits cannot be said to be in respect of a common 'subject-matter'. Therefore, bar prescribed by Sub-rule (4), Rule 1, Order XXIII of the Code of Civil Procedure, obviously will not be attracted.
14. It would be appropriate to refer to a decision rendered by the Apex Court in the matter of [Vallabh Ors. Das v. Dr. Madanlal and Ors.) reported in : [1977]1SCR211 , wherein the Apex Court has explained the meaning of a phrase 'same subject-matter' appearing in Order XXIII, Rule 1 of the Code of Civil Procedure. It has been observed thus:
'Subject-matter' in Order 23, Rule 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. (Rukma Bai v. Mahadeo Narayan) A.I.R. 1917 Bom. 10 : I.L.R. 42 Bom. 155 and (Singa Reddi v. Subba Reddi) A.I.R. 1918 Mad. 512 : I.L.R. 39 Mad. 987. Rel. on.
Mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits.
15. It would also serve useful purpose in referring to the decision of the Calcutta High Court in the case of (A.J. Judah v. Ramapada Gupta) reported in : AIR1959Cal715 . While dealing with identical question, learned Single Judge of Calcutta High Court has observed thus:
If the cause of action which gave rise to the reliefs claimed in the subsequent suit did not arise when the previous suit was instituted and withdrawn in the sense that one important event absolutely essential to complete the cause of action in the subsequent suit did not take place, then the subject-matter of the two suits must be different and Order 23, Rule 1(3) has no application.
On perusal of the plaints in both the suits i.e. previously instituted suit and instant suit, it is observed that, on comparison of the pleadings in two suits, it appears that the relief claimed and the facts narrated constituting the cause of action are not identical. For determination of the question, one has to look to the substance of the two suits and not to their form and language only. The subject-matter of a suit can only be ascertained from the plaint filed. The addition of a new fact to a set of existing facts may change the character of the suit and the right to relief.
16. If we peruse the plaint in the previously instituted suit, it would be evident that the earlier suit was presented before completion of the period prescribed under the deed Exhibit 44. No relief in respect of redemption of mortgage was claimed in the earlier suit. The suit was founded on a different cause of action. However, in the instant suit i.e. suit instituted at subsequent stage, relief in respect of redemption of mortgage is claimed. So also, the suit is instituted after completion of period prescribed under the document Exhibit 44. In this view of the matter, the 'subject-matter', as has been explained by the Apex Court in the matter of Vallabh Das (supra), cannot be said to be identical. Therefore, the bar, as contended by the appellant, in view of the provisions of Rule 1, Order XXIII of Code of Civil Procedure, cannot be said to have been attracted.
17. Learned Counsel for the appellant has placed reliance on the judgment in the case of (Murlidhar Khunteta Bhooramal v. Bhooramal) reported in 1978 Raj 191. Said matter is in respect of suit for eviction under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It has been observed in the reported matter that the cause of action, which is the foundation of both the suits, was one and the same and, therefore, subsequent suit was held to be barred under the provisions of Order XXIII, Rule 1 of the C.P.C.
18. Similar is the case in respect of judgment in the case of (Papinayakanahalli Venkanna and Ors. v. Janadri Venkanna Setty (by L.Rs.) reported in A.I.R. 1985 Kar 166. The reported matter is under the provisions of Karnataka Rent Control Rules and lays down an identical principle.
Learned Counsel for the appellant has also placed reliance on the judgment in the case of Order of (Holy Cross v. Lonnappan Thattil reported in : AIR1990Ker215 ).
19. For the reasons recorded above, the judgments, on which reliance is sought to be placed by the appellant, are of little help and cannot be strictly made applicable to the facts of the instant case.
20. It is observed that the point raised in the second appeal was not raised before both the Courts below. Although the memorandum of appeal presented to the first Appellate Court does make a reference cursorily to the objection, however, Ground No. 8 raised in the memorandum of appeal also do not specifically lay foundation for consideration of the objection. However, the question advanced, being a question relating to bar for instituting the suit itself, as provided under Order XXIII, Rule 1, this Court thought it appropriate to admit the appeal by formulating such question and the same has been dealt with in this appeal for the first time.
21. For the reasons set out above, I do not find that the argument advanced by the appellant in support of the objection raised is acceptable. There is no merit in the second appeal and same deserves to be dismissed.
22. Appeal is, therefore, dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Pending civil applications, if any, stand disposed of.
23. A Request is made by learned Counsel for the appellant that during pendency of the second appeal, execution and operation of the judgment and decree passed by the trial Court and confirmed in appeal by the first Appellate Court was directed to be stayed by this Court. It is stated that appellant is in possession of the property and his possession be protected for further period of eight weeks. Appellant has expressed willingness to file an undertaking that on expiration of such period, he would vacate his possession.
24. In this view of the matter, it would be desirable to continue interim stay to the execution and operation of judgment and decree passed by the trial Court which has been modified by the first Appellate Court, for further period of eight weeks on condition of appellant tendering an undertaking to this Court that on expiration of such period of eight weeks, he would vacate the possession and hand over the same to the respondent.