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PETITIONER:

BAKHTAWAR SINGH & ANR.

Vs.

RESPONDENT:

SADA KAUR & ANR.

DATE OF JUDGMENT: 28/08/1996

BENCH:

FAIZAN UDDIN (J)

BENCH:

FAIZAN UDDIN (J)

SINGH N.P. (J)

CITATION:

1996 SCALE (6)222

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Faizan Uddin, J.

1. this is an appeal by the unsuccessful plaintiffs whose

suit far deolaration to the effect that they are in

possession as owners of 2/3 share in the estate of the

husband of respondent No. 1 was dismissed by the Sub-Judge.

1st Class, Muktsar as barred by limitation by his judgment

and dagree dated May 17, 1902 which has been affirmed by the

First appellate Court and the High Court.

2. The land in suit is the anoestral land originally

belonging to Gulab Singh who died leaving behind him his

five sons. namely. Sampuran Singh, Jeet Singh, Dalip Singh,

and Bakhtawar Singh, The defendant respondent herein was to

Dalip Singh. Dalip Singh died in the year 1932 whereafter

the respondent Sada Kaur contracted `Karewa' marriage with

Chand Singh the younger brother of her deceased husband

Dalip Singh.

3. The plaintiffa appellants who are two sons of late

Gulab Singh filed a declaratory suit on 19.1.1992 by

contending that they were in possession as owners of 2/3

share in the estate of Dalip Singh, the late husband of

defendant/ respondent No. 1 had forefeited her tight in the

estate of her deceased husband on acoount of marriage, by

virtue of the prevalent oustom amongst them and the

plaintiffs being the reversionaries were entitled to inherit

the same. The said suit of the plaintiffs was diamissed on

June 1989 on the findings that the defendant respondent No.

1 did not forefait her right on her remarriage with the

younger brother of her late husband. But the appeal filed by

plaintiffs against the said judgment and decree was allowed

on August 7, 1993 reversing the judgment and decree passed

by the Trial court.

4. Thereafter the plaintiffs filed another suit against

the defendant respondent No. 1 being civil suit No, 884 of

1984 to got back the possession of the suit land as

according to them, in the mean-while the defendant had taken

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forolble possession of the suit land.

5. The defendant respondent No. 1 filed second appeal in

the High Court against the reversing judgment of the

appeallate court dated August 7, 1963 but High Court

maintained the judgment and decree and dismissed the second

appeal. The High Court, however, granted Certificate and

leave to appeal to Suprame Court on the point whether a

widow forefelts her rights or not by `Karewa' marriage with

her brother-in law.

6. Subesquently, on May 20, 1971 the plaintiffs withdrew

their civil suit No. 881 of 1984 form the Court of sub-judge

with liberty to file a fresh suit for possession of land.

7. On July 24 1990 the Supreme Court dismissed the appeal

filed by the respondent Bada Kaur upholding the judgment of

the civil courts and the high Court holding that the

respondent No. 1 had lost her rights in the estate of her

deceased husband Dalip Singh when she contracted 'Karewa'

merriage with her brother-in-law, Chand Singh. Thereafter on

November 20, 1990 the plaintiffs appellants again filed a

fresh shit Civil Suit No, 661 of 1994. The Sub-Judge took

the view that the plaintiffs suit was barred by limitation

and the defendant respondent No. 1 had perfected her title

by adverse possession. The Additional District Judge,

Faridkot by his judgment dated August 27, 1985 as well as

the High Court by the impugned judgment dated September 4,

1986 upheld the findings recorded by the Trial Court and

dismissed the plaintiffs appeal against which this appeal

has been directed.

8. The contention of the learned counsel for the

appellants is that since the plaintiffs has withdrawn their

earlier suit (Civil Suit No. 661 of 1984) with pepmission to

file a fresh suit on the same cause of action in accordance

with the provisions coontained in lause (3) of rules 1 of

Order XXIII of the Code of Civil Procedure (hereinafter the

Code) and , therefore, the plaintiffa were entitled to

exolude the time spent in prosecuting the said earlier suit

as provided under Section 14 of the Limitation

Act,(hereinafter the Act), The question, therefore, that

aries for our consideration is where the plaintiffs

appallents were permitted to withdraw the suit in a

accordance with the provisions contained in clause (3) of

Order XXIII, rile 1 of the Code and whether in the facts and

circumstance of the present case the plaintiffa appellants

are entitled for exclusion of the time under Section 11 of

the Act, Clause (3) of Order XXIII rule 1 of the Code

conmtemplates that where the Court is satisfied fail that a

suit must fail by reason of some formal defect, or (b) that

there are sufficient ground for allowing the plaintiff to

institute a fresh suit for the subject matter of the suit or

part of a claim, it may on such terms as it thinks fit,

grant the polaintiff permission to withdraw from such suit

or such part of claim with liberty to institute a fresh suit

in respect of subject matter of case all the courts below

including the High Court concurrently found that the

plaintifs/appellants failed to withdraw the suit was given

on the ground that the suit was bound to fail by reason of

some formal the defect or plaintiffs to institute a fresh

suit n respect of the same subject matter, Not only this the

plaintiffs had not even produced the application which is

said to have been filed for withdrawal of the earlier suit

with permission to file a fresh suit on the same cause of

action to show as what was the formal defect in the earlier

suit by reason of which it was sought to be withdrawn.

However the order dated May 20,1971 passed by the civil

court was on record which did not indicate as to what was

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the formal defect in the suit by reason of which the

permission to withdraw the same was accorded. In these facts

and circumstances no case for action and for the same relief

after the withdrawal of the earliar suit was made out by the

plaintiffs/appellants in accordance with the provisions of

clause (2) of Order XXIII rule 1 of the Code.

9. As regards the exclusion of time under Section 14 of

the Limitation Act it was essential for its application to

show that the proceedings related to the same matter in

issue and the plaintiff prosecuted the suit in good faith in

a court which, from dafact of jurisdiction or other cause of

like nature is unable to entertain it. As discussed above

the plaintiffs appellants have miserably failed to show as

to what was the defect of jurisdiction or any other cause of

like nature by reason of which the earlier suit was not

entertainable or competent. That being so, the benefit of

the provisions of 14 cannot be legitimately extended to the

plaintiffs, In these facts and circmatanpes the plaintiffs

suit has rightly been dismissed as barred by limitation.

10. For the reasons stated above the appeal fails and is

hereby dismissed. We make no order no as to costs.