High Court
Facts
1 wp 7833.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7833 OF 2025Babasaheb Bhagwanrao Baglane.. PetitionerVersusUddhav Ramchandra Ubale.. RespondentShri Hrishikesh V. Tungar, Advocate for the Petitioner.Shri Shriram V. Deshmukh, Advocate for the Respondent.CORAM :SHAILESH P. BRAHME, J. DATE :08TH JULY, 2025.FINAL ORDER :.This petition is directed against order dated 19.06.2025passed below Exhibit 26 by the learned 03rd Joint Civil JudgeJunior Division, Beed in R.C.S. No. 787 of 2024 refusing todismiss the suit. The petitioner is original defendant and therespondent is original plaintiff, who has filed R.C.S. No. 787 of2024 for declaration and injunction.2.By way of application Exhibit 26, petitioner soughtdismissal of the suit contending that previously R.C.S. No. 538 of2022 was filed by Ashok Sakharam Nirmal against the petitionerfor declaration and injunction in respect of self same subjectmatter. In that suit a power of attorney was submitted by theplaintiff - Ashok appointing the respondent Udhav as attorney.The then plaintiff Ashok executed sale deed in favour of therespondent/attorney on 07.03.2024 transferring the suit land. A
Legal Reasoning
6 wp 7833.25of the plaint. It is permissible to the party to raise plea underOrder XXIII Rule 1 (4) (a) and (b) of the C. P. C., but same cannotbe dealt with in the form of application under Order VII Rule 11of the C. P. C. I have already discussed that there is noprohibition for respondent to institute present suit. In any wayrejection of application Exhibit 26 cannot be faulted.14.Petitioner has relied on the judgment of this Court in thematter of Rafique Barkatulla Khan Vs. Shahenshah Hussain Iqbal Munshi(supra). My attention is adverted to para No. 12 of the judgmentand inter alia the decision of the Supreme Court in the matter ofDhurandhar Prasad Singh Vs. Jai Prakash University andothers reported in (2001( 6 SCC 534. The ratio laid down bythe Supreme Court cannot be made applicable. I have alreadyobserved that it was the choice of the respondent either tocontinue with earlier suit or to institute independent suit onfresh cause of action. It is not the purport of the ratio that justbecause the party is transferee pendent lite, he is precluded frominstituting fresh suit.15.Further reliance is placed on the judgment of the SupremeCourt in the matter of Guruswami Nadar Vs. P. Lakshmi Ammal (D)Through L.Rs. and others (supra). I have considered the principleslaid down in paragraph No. 3 of the judgment, which are inrespect of purport of Sec. 52 of the Transfer of Property Act. Inthe present case, just because respondent is transferee pendentlite, it cannot be said that he is debarred from filing suit on freshcause of action. The facts are distinguishable and the ratio 7 wp 7833.25cannot be made applicable.16.Lastly, reliance is placed on the judgment of the AllhabadHigh Court in the matter of Ram Peary Vs. Gauri (supra). The saidjudgment also throws light on the purport of Sec. 52 of theTransfer of Property Act. It is distinguishable on facts. In thecase at hand though respondent was purchaser pendent lite,earlier suit was withdrawn. The devolution of interest by earlierplaintiff is unaffected. This judgment is also of no avail to thepetitioner.17.Respondent has placed reliance on the judgment of thisCourt in the matter of Harishchandra Vithoba Narwade and others Vs. Smt.Vatsalabai Narayan Shinde (supra). I have considered paragraph Nos.11 to 13 of the judgment, which is squarely made applicable tothe case at hand. The bar under Order XXIII Rule 1 (4) (a) and(b) of the C. P. C. is operative against vendor of the respondentthat is Ashok and not to the respondent.18.For the reasons recorded above, there is no substance inthe writ petition. The writ petition is liable to be dismissed andsame is dismissed. However, there shall be no order as to costs.[ SHAILESH P. BRAHME, J. ]bsb/July 25
Arguments
2 wp 7833.25pursis at Exhibit 22 was submitted on 12.12.2024 by attorneystating that plaintiff did not desire to continue with the suit. On09.01.2025, suit was disposed of as withdrawn in view of pursisat Exhibit 22. As respondent who was attorney filed present suitfor same relief on 19.12.2024 showing cause of action of01.12.2024.3.Petitioner contested the suit filed by the respondent byfiling written statement. By application Exhibit 26, it wascontended that the suit is not tenable because it was for the selfsame relief and on self same cause of action. Earlier suit is statedto have have been withdrawn without any liberty, hence it isagainst Order XXIII Rule 1 (4) (a) and (b) of the Code of CivilProcedure (for the sake of brevity and convenience hereinafterreferred as to the “C. P. C.”). Application is contested by therespondent. Same is rejected by the impugned order.4.Learned counsel for the petitioner Mr. Tungar submits thatearlier suit was fraudulently withdrawn by the respondent, whowas acting as an attorney. It was not disclosed that he himselfpurchased the suit land. Pursis Exhibit 22 was not signed by thethen plaintiff – Ashok. Earlier suit was disposed of aswithdrawn without granting any liberty to file subsequent suit.It is contended that subsequently filed suit is against OrderXXIII Rule 1 (4) (a) and (b) of the C. P. C. No recourse was takento Order XXII Rule 10 of the C. P. C. It is further submitted thatsubsequently filed suit on fresh cause of action which arose on01.12.2024, when earlier suit was pending, is untenable. It is 3 wp 7833.25further submitted that the respondent is stepping in the shoes ofhis vendor, who was plaintiff of the earlier suit and hence he is apurchaser pendent lite and cannot prosecute any independentsuit in absence of permission to that effect granted in earliersuit.5.Learned counsel for the petitioner relies on the judgmentsof the Supreme Court, this Court and the Allhabad High Court inthe matters of Guruswami Nadar Vs. P. Lakshmi Ammal (D) Through L.Rs.and others reported in LAWS (SC) 2008 5 48, Rafique Barkatulla Khan Vs.Shahenshah Hussain Iqbal Munshi reported in LAWS(BOM) 211 9 191 andRam Peary Vs. Gauri reported in LAWS (ALL) 1977 4 18.6.Per contra, learned counsel Mr. Deshmukh for therespondent supports the impugned order. He would point outthat cause of action for both the suits are different. In earliersuit respondent was not a party, but he was only attorney. Hehas filed later suit in the capacity of owner, therefore, provisionsof Order XXIII Rule 1 (4) (a) and (b) of the of the C. P. C. are notattracted. He seeks to rely on the judgment of this Court in thematter of Harishchandra Vithoba Narwade and others Vs. Smt. VatsalabaiNarayan Shinde reported in 2004(4) Mh.L.J. 897.7.I have considered rival submissions of the parties. EarlierR.C.S. No. 538 of 2022 was filed by the vendor of the respondent– Ashok. It was disclosed to the Court that Ashok had sold outthe suit property, hence he wanted to withdraw the suit, which isrecorded in the order dated 12.12.2024. Same reason is 4 wp 7833.25reiterated in order dated 09.01.2025 disposing of the suit aswithdrawn. Respondent purchased suit land from earlierplaintiff – Ashok on 07.03.2024.8.Respondent was appointed as attorney by power executedon 01.02.2023. Respondent, as such was not party to the earliersuit. There was no prohibition for him to purchase propertywhen earlier suit was pending. No leave was required to besolicited by earlier plaintiff for withdrawing R.C.S. No. 538 of2022, because he had sold out his interest to the respondent.9.Subsequently filed R.C.S. No. 787 of 2024 by therespondent is in the capacity of owner. What is prohibited byOrder XXIII Rule 1 (4) (a) and (b) of the C. P. C. is institution offresh suit in respect of self same subject matter by the plaintiffwithdrawing the suit. There is no impediment for therespondent to institute the present suit and the finding is rightlyrecorded by the Trial Court in that regard.10.R.C.S. No. 538 of 2022 shows cause of action of 12.09.2022,when the then plaintiff was intimidated and threatened. PresentR.C.S. No. 787 of 2024 discloses purchase of the suit land by therespondent on 07.03.2024. The cause of action is stated to be of01.12.2024 after purchase of the property. The date of accrual ofcause of action is different. It cannot be said that on self samecause of action fresh suit has been instituted or there iscontinuous cause of action and as such a suit is not tenable. 5 wp 7833.2511.It is the prerogative of the respondent either to continuewith earlier suit when the suit property was purchased pendentlite or to institute fresh suit after withdrawal of earlier suit. Byimplication of Order XXII Rule 10 of the C. P. C., it was open forthe respondent to seek leave of the Court and to continue withearlier suit. But it cannot be countenanced that, that is the onlypermissible mode for him and present suit is barred by anyprovision of law. Respondent has instituted later suit on freshcause of action, which is not prohibited either by Order XXIIRule 10 or Order XXIII Rule 1 (4) (a) and (b) of the C. P. C.Similar is the case with provision of Sec. 146 of the C. P. C. Asper the said provision the respondent could have continued withearlier suit, but that is not the only course available to him. Ifind no merit in the submissions of the learned counsel for thepetitioner in this regard.12.Respondent is the transferee pendent lite and he wasbound by the decree, had it been passed in R.C.S. No. 538 of2022. His vendor withdrew that suit. Respondent being ownerof the suit property has instituted later suit on fresh cause ofaction. There is no illegality or prohibition for instituting thesuit. Recourse taken by the respondent is within the frame workof law. No case is made out to cause any interference.13.Application Exhibit 26 is not styled as application underOrder VII Rule 11 of the C. P. C. It is stated to have been filedunder Order XXIII Rule 1 (4) (a) and (b) of the C. P. C. Theprayer of the application is dismissal of the suit and not rejection