1. This appeal under section 100 of the Code of Civil Procedure [herein after referred to as the “Code”for the sake of brevity] is at the instance of the original defendants against whom the respondents-
plaintiffs had filed the suit for declaration, possession and for permanent injunction. The case of the plaintiffs in the suit is to the effect that the plaintiff is a trust and its trustees are owners of the suit property. Defendants have started believing themselves to be the owners of the suit property and thus holding the suit property unauthorizedly without any right or title. Therefore, defendants were asked to vacate the suit property and to remove their household articles from the suit property but they did not do so, therefore, legal notice was issued through the advocate on 5.9.1983 but then also, the suit property was not vacated and, therefore, the suit is required to be filed seeking possession by declaring that the defendants have been occupying the suit property unauthorizedly and for permanent injunction restraining the defendants from entering upon the suit property.
2. On service of the summons, the defendants came forward with an application under Order 23 Rule 1(4) of the Code stating that on the same facts and on the same allegations that the defendants are in unauthorized occupation of the suit plot, earlier suit being Regular Civil Suit No. 6 of 1975 was filed by the predecessor in title of the plaintiffs and the predecessor in title of the plaintiffs in the said suit filed purshis dated 27.12.1977 at Exh. 20 and had unconditionally withdrawn the suit. Inspite of such unconditional withdrawal of the earlier suit, present suit is filed on the same facts and allegations for recovery of possession of the suit property and, therefore, present suit is barred by the provisions of Order 23 Rule 1(4) of the Code.
3. The plaintiffs filed the reply to the said application and stated that the possession of the defendants is not lawful and, therefore, the plaintiffs have right to file the suit and such suit could be filed at any point of time because of the continuous wrong on the part of the defendants. It was stated that the defendants have continued to occupy the suit property unauthorizedly as trespasser and they have got no right to hold the suit property and, therefore the plaintiffs are entitled to seek possession of the suit property.
4. Before the learned trial Judge, the defendants had placed on record certified copy of the plaint of earlier suit, withdrawal purshis and the order passed thereon. On the basis of the documents available on record and after hearing the parties, the learned trial Judge came to the conclusion that the plaintiffs have purchased the suit property from the earlier owner who had filed Regular Civil Suit No. 6 of 1975 The learned trial Judge observed that the earlier suit was in respect of the same subject matter and on the same allegations that the defendants have been in occupation of the suit property unauthorizedly as trespasser and they are not entitled to hold the suit property and they be directed to hand over the possession of the suit property. The learned trial Judge further observed that the earlier owner had unconditionally withdrawn the suit and the present suit is now filed by the plaintiffs who are the purchasers of the suit property on similar ground that the defendants are trespassers in the suit property and they are unauthorizedly occupying the suit property. On such facts, the learned trial Judge came to the conclusion that the plaintiffs are precluded from filing the present suit for the same subject matter the cause of action based on the same allegations which were there in the earlier suit and, therefore, present suit is not maintainable as per Order 23 Rule 1(4) of the Code. On such conclusion, the learned trial Judge allowed the application of the defendants and dismissed the suit of the plaintiffs under Order 23 Rule1(4) of the Code.
5. The plaintiffs challenged the said judgment and order of the learned trial Judge by filing Regular Civil Appeal No. 189 of 1984 in the Court of the learned Extra Assistant Judge, Bhavnagar. The learned appellate Judge came to the conclusion that the status of the plaintiffs is changed because the earlier suit was by the plaintiff in his personal capacity and now the property is purchased by the trust and the present suit is filed on the ground that the defendants are trespassers therefore, the only question which is required to be decided at this stage is about the maintainability of the suit. The cause of action in the present suit is different from the cause of action in the former suit. The learned appellate Judge further came to the conclusion that though in earlier suit, it was pleaded that the defendants are trespassers and the same is the ground in the present suit, but such ground has arisen in 1983 and the cause of action has incurred day to day and, therefore, the suit of the plaintiffs is maintainable for seeking possession of the suit property from the trespassers. The learned appellate Judge further came to the conclusion that the property is a trust property and still the defence of the defendants was not disclosed and in that circumstances, the suit of the plaintiffs was maintainable. On the above said observations, the learned appellate Judge allowed the appeal of the plaintiffs by judgment and order dated 30.4.1987 and quashed and set aside the judgment and order passed by the learned trial Judge below application Exh. 8. It is this judgment and order passed by the learned appellate Judge which is under challenge in this appeal.
6. From the record of the case, it is found that initially, Appeal from Order was filed which was admitted by this Court on 24.7.1986 and then, the same was permitted to be converted to Second Appeal by order dated 15.2.1995. From the record, it is not found that the substantial questions of law were formulated while admitting the appeal.
7. This appeal was earlier taken up for hearing. Learned advocate for the respondent Mr. Choksi was not present and to give him opportunity to appear before the Court, the appeal was adjourned to 21.9.2012 by order dated 18.9.2012. Then, on 21.9.2012 also, when the appeal was taken up for hearing, learned advocate for the respondent was not present and then also to give him more opportunity, this appeal was adjourned to 3.10.2012. On 3.10.2012 the appeal could not be taken up for hearing. Today when the appeal is taken up for hearing, learned advocate Mr. Choksi for the respondents is not present. The Court has therefore heard the learned advocate Mr. Mehul S. Shah for the appellants. Learned Advocate Mr. Shah has submitted that from the pleadings of the parties and on available admitted documentary evidence, the only substantial question of law arising for the Court is whether the suit of the plaintiff was barred by the provisions of Order 23 Rule 1(4) of the Code.
8. Having gone through the pleadings of both the plaints with the pleadings in the application Exh. 8 as also the reply of the plaintiff Exh.10, this Court also finds that the above substantial question of law suggested by Mr. Shah arises for consideration of this Court. Therefore, same is formulated for consideration of this Court as under:
Whether the suit of the plaintiff is barred by the provisions of Order 23 Rule 1(4) of the Code and whether the learned appellate Judge was justified in reversing the order passed by the learned trial Judge whereby the suit of the plaintiffs was held to be barred by Order 23 Rule 1(4) of the Code?
9. Learned Advocate Mr. Shah submitted that once the earlier suit was filed by the predecessor in title of the present plaintiffs for recovery of the possession of the suit property on the same allegations and once the said suit was unconditionally withdrawn by the earlier owner of the suit property, present plaintiffs being the purchasers of the suit property would be bound by such unconditional withdrawal of the earlier suit by their predecessor in title. Mr. Shah further submitted that the learned appellate Judge was not right in coming to the conclusion that the earlier suit was filed by the earlier owner in his personal capacity and now the suit is filed by the trust and its trustees and, therefore, they are entitled to seek the eviction of the defendants on the ground that the defendants cannot continue to hold the suit property unauthorizedly because the status of the defendants is of trespassers. Mr. Shah submitted that for the purpose of provisions of Order 23 Rule 1(4) of the Code, allegations in the plaint, cause of action, subject matter of the suit are relevant and not whether the earlier suit was filed by the earlier owner in personal capacity and the subsequent suit is by the trust. Mr. Shah submitted that if this is permitted, then, the purpose and object of the provisions of Order 23 Rule 1(4) of the Code would be frustrated because the party filing the first suit might take undue advantage by filing the suit on the same allegations and same cause of action by transferring the suit property in camouflage manner, therefore, change of ownership is hardly of any relevance if the subsequent suit is found to have been filed on the same allegations and the same cause of action and for the same relief. Mr. Shah submitted that the word plaintiff used in Order 23 would include the purchaser for the purpose of deciding as to whether the suit is barred by Order 23 Rule 1(4) of the Code. Mr. Shah submitted that simply because the subsequent suit was filed in the year 1983, same would not be a ground to come to the conclusion that the plaintiffs are not precluded from filing the later suit if the allegations in both the suit are otherwise of the same nature, in respect of the same subject matter and for the same cause of action and for the same kind of relief. Mr. Shah has cited the decision in the case of (1) Balakrishna Savalram Pujarai Waghmare and others versus Shree Dhyaneshwar Maharaj Sansthan and others, reported in AIR 1959 Supreme Court 798 to dislodge the conclusion reached by the learned appellate Judge that the cause of action occurred to the plaintiff day to day and, therefore, the suit filed by the plaintiffs in the year 1983 after long period was maintainable. Learned Advocate Mr. Shah pointed out that once the wrongful act had taken place, its effect for the purpose of limitation and cause of action has to be from the day such wrongful act took place. Learned advocate Mr. Shah has pointed out that if the suit for the same kind of cause of action arising earlier is permitted to be filed for the same subject matter on the ground that the wrongful act has continued to incur day to day, there will be no end to filing of number of litigations for the same subject matter and for the same kind of wrongful act. Mr. Shah has submitted that the wrongful act in the present case alleged against the defendants had completely ousted the original owner who had sought possession of the suit property from the defendants by filing the suit, therefore, resultant injury from the wrongful act was complete. Mr. Shah submitted that filing of the later suit on the same allegations and on the same cause of action is not saved by Order 23 Rule 1(4) of the Code and if that was so, the legislature would have provided that if the later suit though filed for the same allegations and for the same subject matter but being filed beyond the particular time limit would not be barred by such provisions of Order 23 Rule 1(4) of the Code. Mr. Shah submitted that in fact, learned appellate Judge attempted to read such eventuality in the provisions of Order 23 Rule 1(4) of the Code which is not permissible. Mr. Shah submitted that it is undisputed that the plaintiffs have purchased the suit property from the earlier owner who had filed the earlier suit on the same allegations and for the same cause of action and for the same relief and consciously withdrew the earlier suit and therefore, for all purposes, suit of the same nature by the present plaintiffs is barred by Order 23 Rule 1(4) of the Code. He therefore urged to allow the appeal on the above said substantial question of law.
10. Having heard the learned advocate for the appellant, having perused copy of the plaint in earlier suit being Regular Civil Suit No. 6 of 1975 and copy of the plaint in the present suit and having perused copy of application Exh. 8 filed by the defendants under Order 23, Rule 1(4) of the Code as well as copy of reply Exh. 10, it appears that the former suit was filed by the predecessor in title of the present plaintiffs alleging that the father of the defendants was not the tenant of the suit property but was permitted to occupy the suit property as servant and on his death, his service since came to end, defendants being the heirs of the said deceased person, are not entitled to use the property as heirs of the said deceased person and still the defendants have trespassed upon the suit property and are in illegal possession of the suit property. Thus, possession of the suit property is asked from the defendants in the former suit on the allegations that the defendants are trespassers in the suit property and they are in unauthorized possession of the suit property. Such were the bundle of facts in the former suit which could be said to be the subject matter of the former suit. Relief asked for in the former suit is also for recovery of possession of the suit property from the defendants and for decree of mesne profit for the period 1.12.72 to 28.2.75 at the rate of Rs.100.00 per month. In the former suit, the defendants had already filed the written statement and opposed the suit inter alia stating that the father of the defendants was not holding the property as servant. It was also stated that the father of the defendants and then the defendants have been in possession of the suit property for the last sixty years and the plaintiff was not entitled to ask for the possession from the defendants on the ground that the defendants have been in unauthorized occupation of the suit property. It is after this written statement, the plaintiff presented purshis Exh. 20 on 27.12.77 stating that the plaintiff did not want to proceed with the suit and wanted to withdraw the suit and refund certificate be given to his advocate. On the said application, the Court passed order on 27.12.1977 which reads as under:
“As per withdrawal pursis Exh. 20, this suit is withdrawn under Order 23, R.1 CPC with no order as to cost.
Court fee stamp refund certificate to be issue to the plaintiff or his advocate Shri HC Dave.”
11. So far as the present suit is concerned, the subject matter of the suit as could be found from the plaint can be said to be similar subject matter like the former suit. In the plaint of the present suit, the plaintiffs have averred that the defendants are heirs of deceased Hasanbhai Khanbhai and have started treating themselves as owners of the suit property but in real sense, they are trespassers and they have no right or authority to remain in the property of the trust. Their entry on the property is illegal and their possession is unauthorized. They were therefore asked to vacate the suit property and to take away their belongings-articles from the suit property but they are putting forward their rights in the suit property and, therefore, they were served with notice through advocate to vacate the suit property. The cause of action stated in the suit is that the defendants are in illegal and unauthorized occupation of the suit property and they have not vacated the suit property even after the notice of advocate and since their illegal and unauthorized occupation of the suit property has continued, cause has arisen for removing the defendants from the suit property. Relief asked for in the suit is for passing decree for handing over vacant and peaceful possession of the suit property to the plaintiffs and for permanent injunction restraining defendants from entering upon the suit property and also for mesne profit. The only difference in the pleadings between the two suits is that in the earlier suit, the plaintiff had averred that the father of the defendants was not the tenant but was permitted to occupy the suit property as servant and, therefore, the defendants are unauthorized occupants. This part of the pleading is not forming part of the pleadings in the present suit. However, the present suit is certainly based upon the similar kind of allegations which were there in the former suit to the effect that the defendants are trespassers and are in illegal and unauthorized occupation and possession of the suit property and they are required to be removed from the suit property. In my view, therefore, the bundle of facts in the present suit which constitutes the subject matter of the suit are in no way different from the bundle of facts which constituted the subject matter in the former suit. The present suit might not contain the exact pleadings which were there in the former suit but that by itself would not make any difference in so far as the subject matter of the suit is concerned. Not only the subject matter of the present suit is similar one but even the relief prayed for is also identical in nature. Purpose of filing the present suit is as also of the former suit was the same and it was to recover the possession of the suit property from the defendants on the ground that the defendants are in illegal and unauthorized possession of the suit property. In view of the above proved facts where-from it is not difficult to come to the conclusion that the subject matter of both the suits was same, the question would then arise as to whether the unconditional withdrawal of the former suit by the predecessor in title of the plaintiffs would preclude the present plaintiffs from filing the present suit by virtue of the Order 23, Rule 1(4) of the Code and whether the bar contained in Order 23 Rule 1(4) of the Code would apply to the present plaintiffs who were not the plaintiffs in the former suit?
12. It is required tobe noted that the plaintiffs in the present suit are not setting up independent title to the suit property. It is proved fact that the plaintiffs are purchasers of the suit property and have thus stepped into the shoes of the predecessor in title of the suit property, therefore, for the purpose of Order 23 Rule 1(4) of the Code, purchaser of the suit property who filed the suit on same subject matter for some relief to recover possession from the defendants are to be taken and treated as plaintiffs even if such purchaser was not the plaintiff in the former suit but such purchaser has to be taken as plaintiff as referred in Order 23 Rule 1(4) of the Code. At this stage, learned advocate Mr. Shah has invited attention of this Court to the provisions of section 146 of the Code and submitted that the guidance can be taken from the said provisions so as to come to the conclusion that the present suit filed by the plaintiffs can be said to have been filed by the persons claiming under the plaintiff who had filed the former suit because the present plaintiffs are the purchasers of the suit property and, therefore, they can be said to be claiming under the original owner from whom they have purchased the suit property especially when the cause for filing the suit and the relief prayed for both are based on the same subject matter and same kind of allegations. Sec. 146 reads as under:
“146. Proceedings by or against representatives. Save as otherwise provided by the Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any person, then, the proceedings may be taken or the application may be made by or against any person claiming under him.”
13. I find that what Mr. Shah has stated could be the correct view of the matter because the plaintiffs have not set up the independent title in respect of the suit property. Therefore, they can be said to be the persons claiming under the original owner who had filed the former suit. Viewing from the above angle, it clearly appears that the suit of the plaintiffs was barred by the provisions of Order 23 Rule 1(4) of the Code There is no escape from the legal effect flowing from the provisions of Order 23 Rule 1(4) of the Code once it is found that the subject matter of both the suits is the same and the relief prayed for is also same. However, the learned appellate Judge has recorded that the cause of action arising in the year 1983 can be said to be different because of the passage of time and such cause of action has continued to be incurring from day to day and, therefore, the suit would be maintainable. In my view, such conclusion of the learned appellate Judge if allowed to stand, would run counter to the object and purpose of Order 23 Rule 1(4) of the Code. Simply because long time had elapsed after the former suit was withdrawn, that would not change the cause of action for filing the latter suit without there being any change in the ultimate base of the suit and the cause of action of the suit and the relief of the suit. Rule precluding filing of the another suit is imperative and the bar contained in Order 23 Rule 1(4) of the Code is absolute and the long passage of time cannot take away the statutory bar imposed by Order 23 Rule 1(4) of the Code.
14. In the case of Balakrishna Savalram Pujarai (supra), Hon'ble Supreme Court has observed in para 31 as under:
“31. In dealing with this argument it is necessary to bear in mind that S. 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterized as continuing wrongs that S. 23 can be invoked. Thus considered it is difficult to hold that the trustees' act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case. That is the view which the High Court has taken and we see no reason to differ from it.”
15. From the pleadings in the former suit, it could be clearly made out that by the alleged wrongful act on the part of the defendants, ouster of the original owner of the property was complete. In the present suit, the cause of action has arisen on the same wrongful act of the defendants. Therefore, it can never be said from the facts of the case that the cause of action has continued to incur day to day as observed by the learned appellate Judge. In light of the above, I am of the view that the suit filed by the plaintiffs was clearly barred by Order 23 Rule 1(4) of the Code and the learned trial Judge has not committed any error in holding that the suit of the plaintiff was barred by the provisions of Order 23 Rule 1(4) of the Code and has, therefore, rightly dismissed the suit under said provisions. The learned appellate Judge was, therefore, not justified in interfering with such judgment and order passed by the learned trial Judge on the ground and reasoning not germane to the issues involved in the case. Substantial question of law is, thus, answered accordingly and the ultimate result would be to allow the present appeal.
16. In the result, this appeal is allowed. The judgment and order passed by the learned Extra Assistant Judge Bhavnagar dated 30.4.1986 in Regular Civil Appeal No. 189 of 1984 is hereby quashed and set aside and the judgment and order passed by the learned trial Judge is hereby restored.
(C.L. Soni,J.) an vyas