(A) Code of Civil Procedure, 1908 – Order IX, Rule 9 – Order XXXIII, Rule 1 – Civil Procedure – Bar on Fresh Suit – Same cause of action – Plea on bar of Suit – Held: The defendant was required to establish that the previous suit was based upon the same cause of action as the present suit. This could have been done by bringing on record the pleadings in the previous suit and only then the Court could have determined whether the causes of action in the two suits were identical or not. Similarly, the plaintiff could have brought the pleadings, in the previous suit, which was withdrawn, on record to establish the present suit covers, the same subject matter or the claim as the previous suit. The defendant has not brought the pleadings on record and in the absence of the pleadings, the learned Courts below could not have refused to entertain the present suit on the ground that one suit was withdrawn and the other suit was dismissed in default. (Para 18)
(B) Code of Civil Procedure, 1908 – Res judicata – Suit not barred – Plea of Res judicata – Held: The previous suit was not heard and finally decided but it was dismissed in default of appearance; therefore, the court had rightly held that the present suit is not barred by the principle of res judicata. (Para 23)
(C) Encroachment – Possession – When a person has encroached on the land of others, the possession is the only remedy and no compensation can be awarded – Held: The defendant was found to be in possession over the part of the suit land. The defendant failed to show any right to retain the possession, therefore, the learned Courts below had rightly passed a decree for possession. (Para 29, 30)
HIGH COURT OF HIMACHAL PRADESH
2023 STPL(Web) 200 HP
Ramesh Chand Vs. Prem Lal
RSA No. 38 of 2022-Decided on 25-9-2023
https://stpllaw.in/wp-content/uploads/2023/10/2023-STPLWeb-200-HP.pdf
