S.B. MAJMUDAR

(1) A short but an interesting question of procedural law falls for determination in this appeal. The said question is as to whether the plaintiff can be permitted with immunity to file more than one suit on the same cause of action against the same defendant and if he has filed such a suit what is the legal fate of such subsequent suit.

(2) The question which is posed for determination in the present proceedings arises out of the following conspectus of facts.

(3) The appellant plaintiff is the owner of immovable properties bearing survery 480/20/3/1 480 and 480/20/3/3 situated in the Town Planning Scheme No. XI (Bapunagar) in this city. On this land which comprises of three sub-divisions of survey No. 480/20/3 there are rows of rooms or Chawls of the plaintiff. According to the plaintiff she is also jointly with the defendant the coowner of the property bearing survery No. 480 which admeasures two Gunthas (1 Guntha as per the Record of Rights) and that land bearing survey No. 480/20/5 is the passage land. It is the case of the plaintiff that on the north of her property namely survey No. 480/20/3/1 480 and 480/20/3/3 there is situated a Chawl of the defendant comprising of survey Numbers 480/20/1 and 480/20/2 which are the other subdivisions of survey No. 480/20. The plaintiff s further case is that the entire survey No. 480/20 has been included in the Town Planning Scheme No. XI Bapunagar and she and the defendant have jointly been allotted the entire property as Final Plots Nos. 16 and 17 under the said scheme. The plaintiff contends that even after the reconstitution of the plots rights of the parties to the suit land bearing survey No. 480/20 have not been extinguished and her right to use the suit land survey No. 480/20/5 as a coowner for passage has not been extinguished. According to her the land of Final Plots No. 16 and 17 of the Town Planning Scheme No. XI which have jointly been allotted to the parties to the suit has never been partitioned between the parties to the suit and not only that but her right to use the land of survey No. 480/20/5 as a passage land has also remained unaffected. The plaintiff further contends that in the reconstitution of the plots 206 Sq.Mtrs. of additional land has been allotted to the parties and she has a joint right in respect of those additional 206 Sq. Mtrs. To the north of the land bearing survey Nos. 480/20/3/1 480 and 480/20/3/3 there is the land of the defendant and in that land the defendant respondent has his rows of rooms or Chawls. The plaintiff alleged that though there has never been a partition between her and the defendant the defendant unauthorisedly wanted to construct a wall between the land of the plaintiff and the land of the defendant as though there has already been a partition. The plaintiff therefore contended that the alleged act of the defendant would create a difficult situation for the plaintiff and that if the defendant succeeds in putting up a compound wall or a partition between her property and the property of the defendant her passage would be blocked and her right in the additional land would be lost. The plaintiff further stated that if the defendant had constructed a compound wall between her rooms and the rooms of the defendant then her right of passage for men as also for the vehicles on the co ownership land of survey No. 480/20/3 would be extinguished and her right to the additional land of 206 Sq. Mtrs. would also be defeated and her tenants would find difficulty in going to the main road and the vehicles would not be in a position to come to her property. On these allegations the plaintiff had prayed for a permanent injunction restraining the defendant from putting up or constructing eastwest wall or fencing in between her Chawls and the defendants chawls i. e. to the north of the plaintiffs Chawls and to the south of the Defendants Chawls and further restraining the defendant from disturbing or obstructing the plain tiff in her enjoyment of her coownership rights and from taking her vehicles to her land.

(4) Thus the aforesaid material averments in the plaint reflected a cause of action for the plaintiff based on rights flowing from the alleged existence of coownership between the parties and the alleged threat which the defendant was putting up against the plaintiffs right to use the coownership property as before. On the basis of the right of her coownership she had prayed for a permanent injunction against the defendant based on the cause of action against the proposed threatened action of the defendant in putting up an eastwest compound wall between the northern and southern portions of the coownership property. The aforesaid suit was filed before the City Civil Court at Ahmedabad on 21st September 1973 It was registered as Civil Suit No. 3158 of 1973. The respondent defendant being served with summons of the said suit filed his written statement Exh. 10 and among others contended that before filing the present suit the appellant plaintiff had on March 13 1973 filed against this very defendant an earlier suit No. 1071 of 1973 in the same Court on the same facts as have been alleged in the present suit and for the same relief as has been prayed for in the present suit and in that earlier suit No. 1071 of 1973 the plaintiff had obtained a temporary ad interim injunction against the defendant and after reading the defendants reply to the temporary injunction application and perusing the documents produced by the defendant in the said suit the plaintiff apprehended that she will fail to get the ad interim injunction confirmed in the earlier suit and hence she had filed the present suit and had obtained an ad interim injunction in the present suit and had concealed from court the fact about filing of the earlier suit by her. The defendant therefore contended that as the present suit was filed during the pendency of the earlier suit the same was liable to be dismissed. This contention was raised by the defendant in paras 1 2 3 and 8. The defendant of course raised various other contentions on merits of the case. The learned Trial Judge framed issues arising from the aforesaid pleadings. A specific issue regarding maintainability of the second suit i. e. present suit was raised as issue No. 4-A and it reads as under:

"4A Whether the present suit which has been filed during the pendency of earlier suit Number 1071 of 1971 is maintainable " The present suit was also resisted by the defendant on additional grounds namely that it was barred by the principles of Resjudicata or the provisions of Order II Rule (2) of the Code of Civil Procedure. The said two additional technical objections are covered by issue No. 4 which reads as under: (4) Whether the suit is barred by the principles of ResJudicata or the provisions of Order II Rule (2) of the Code of Civil Procedure

(5) Inspite of the aforesaid technical objections of the defendant going to the root of the matter the suit was tried on merits and evidence was recorded on all the issues. Ultimately the learned Trial Judge came to the conclusion that even though the suit was not barred by the principles of resjudicata or the provisions of Order II Rule (2) of the C. P. C. it was not maintainable as it was filed during the time when the earlier suit against the same defendant on the same cause of action for the same relief was pending in the same Court and hence it amounted to an abuse of the process of the court and it represented a vexatious attempt on the part of the plaintiff to harrass the defendant and consequently the present suit was held to be not maintainable by the learned Trial Judge and accordingly issue No. 4-A was answered against the plaintiff The learned Trial Judge of course decided the other issues on merit and held on issue No. 1 that the plaintiff proved that the land survey No. 480/20/ 5 was the coownership land and she had a right of way on that piece of land. But on issue No. 2 it was held that the said right did not survive after the reconstitution of plots by the Town Planning Officer. Issue No. 3 which was also on merits was held substantially against the plaintiff by holding that the plaintiffs right of way was extinguished on account of the coming into force of the Town Planning Scheme. Thus issues Nos. 1 2 and 3 which pertain to the merits of the case were also answered by the learned Trial Judge. But as stated by me earlier the learned Trial Judge was pleased to dismiss this present suit mainly on his finding on issue No. 4-A that it was not maintainable as being an abuse of the process of the court on the part of the plaintiff.

(6) The aforesaid decree of dismissal of her suit has brought the dissatisfied plaintiff to this court by way of the present first appeal. As stated above the controversy between the parties in the present appeal lies in a very narrow compass and if it is held that the present suit which is the second suit between the parties was not maintainable on account of it being treated as an abuse of the process of court and being a vexatious proceeding taken out by the plaintiff against the defendant no further question would survive and the findings reached by the learned Trial Judge on the merits of the controversy between the parties at issues Nos. 1 2 and 3 would be rendered irrelevant and otiose. If at all it is held that the present suit was maintainable any further question regarding the examination of the findings reached by the learned Trial Judge on issues Nos. 1 2 and 3 would survive for consideration. 1 therefore straightaway proceed to deal with this main controversy between the parties in the present proceedings.

(7) Before resolving this controversy certain admitted facts need be stated. The plaintiff had admittedly filed the earlier suit No. 1071 of 1973 on 13th March 1973 in the same court against the same defendant raising the same contentions and praying for the same relief. Thus the earlier suit was based on the same cause of action and was against the same defendant and was praying for the same relief. It is equally true that in the earlier suit the plaintiff had obtained an ad interim injunction and the defendant who had joined issues contended that the plaintiffs application was not maintainable on merits; but before that application was finally decided the plaintiff filed the present suit on 21st September 1973 It is interesting to note and it is fairly conceded by Mr. H. B. Shah the learned Advocate appearing for the appellant plaintiff that the plaint in the present suit is practically on the same lines as the one in the earlier suit and for all intent and purposes it appears to be a copy of the earlier plaint. It is further pertinent to note that in the present suit no reference whatsoever is made regarding the earlier suit which was pending between the parties in the same City Civil Court on the date on which the present suit was filed. As there is no reference in the present suit to the earlier suit there would obviously be no reference regarding the further development in the same namely the obtaining of ad interim injunction in the earlier suit by the plaintiff. Only an as interim injunction was obtained by the plaintiff against the defendant in the previous suit and no final orders were still passed in the previous suit regarding the plaintiffs prayer for interim injunction. Thus completely bypassing the earlier suit between the same parties the present suit was filed as if it was being filed for the first time. Not only that but in the present suit a fresh ad interim injunction was obtained by the plaintiff from the City Civil Court These are all well established and admitted facts. on the record of this case. It is in the background of these admitted facts that the short controversy which has arisen for decision of the court has to be resolved.

(8) In the setting of the aforesaid facts it is to be decided as to whether the plaintiff can he permitted with immunity to proceed with the second suit or whether the second suit should be treated as a still born suit and if it is to be treated as a still born suit under what provisions of law it can be so treated. As I have already stated above the learned Trial Judge came to the conclusion that the second suit against the same defendant on the same cause of action and for the same relief cannot be held to be barred by the principles of resjudicata. No exception can be taken of the aforesaid finding of the learned Trial Judge. Before the bar of res judicata can be invoked it must be held that any controversy between the parties in the present suit was finally adjudicated upon between the same parties in the previous suit. That is not the case here. Similarly it has to be stated that the present second suit cannot be held to be barred under Order II Rule 2 CPC. A mere look at Order It rule 2 C.P.C. shows that before the said provision can be pressed in service it has got to be established that the plaintiff is guilty of splitting up her whole claim based on single cause of action against the same defendant by putting forward different parts of the same claim in different suits against the same defendant and/or is praying for a different relief based on the same cause of action in the second suit against the same defendant having not previously obtained leave of the court in which the first suit is pending to enable her to adopt such a course. Such a situation is not countenanced by the provisions of Order II Rule 2 C.P.C. But here it is nobodys case that the plaintiff has spilt up the whole claim based on the same cause of action or that she had prayed for one relief on the same cause of action in the prior suit and is now praying for a different relief based on the same cause of action in the subsequent suit. On the contrary in the present suit she has prayed for all the proper reliefs flowing from the same cause of action as prayed for by her already in the previous suit and now she is merely trying to have a second inning and she is trying to reagitate the same question arising from the same cause of action and prays for the same reliefs once again by way of the present suit It is like old wine in a new bottle. Samc text of the plaint previously presented before trial court which got registered as suit No. 1071 of 1973 has again been rerepresented by way of subsequent suit filed in September 1973 under new No. 3158 of 1973. Save and except the change of number of the suit the entire body of the plaint remains identical and the question is whether such a second suit can be countenanced at all by procedural law. While finding an answer to this question the provisions of Order II rule 2 obviously cannot be pressed in service by the respondent. Thus the learned Trial Judge was perfectly right in holding that the provisions of Order II Rule 2 C.P.C. cannot shut out the trial of the present suit. Same is the situation so far as Order IX rule 9 is concerned. If a suit is dismissed on account of default of appearance under Order IX rule 8 C.P.C. the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action under Order IX rule 9 of the CPC. and her only remedy is to apply to have the dismissal order set aside on the court being satisfied about plaintiffs absence on prior occasion being based on a sufficient cause. It is nobodys case that the earlier suit was dismissed for default of appearance on the part of the plaintiff and that thereafter she filed the present suit. Consequently order IX Rule 9 is out of picture. Similarly order XXIII Rule 1 subrule (4) is also out of picture and can render no assistance in resolving the present controversy. Order XXIII rule 1 postulates that if the plaintiff abandones his suit or a part of his claim without the permission referred to in subrule (3) he will be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. Even this eventuality has not occurred in the present case. The earlier suit was not withdrawn wholly or in part and the second suit namely the present suit was not filed after any permission was granted by the court to the plaintiff to file the same. Consequently order XXIII rule 1; sub-rule (3) and (4) are also out of picture.

(9) One other provision of the Civil Procedure Code is worth noting at this stage. That is section 10. The provisions of section 10 C.P.C. could have been pressed in services for staying the second suit between the same parties raising the same issues if the second suit was otherwise found to be properly instituted. But if the second suit is found to have been filed by the plaintiff being smart with the court and if her action does amount to the abuse of the process of the court what should be the fate of such second suit is a questions which is to be decided even apart from the provisions of section 10 C.P.C. 10 In other words section

(10) C.P.C. does not cover a case where the subsequent suit is found to be tainted from its inception. It on the other hand postulates two properly instituted suits involving directly and substantially identical matters in issue between the same parties or their privis.

(11) The learned Trial Judge has held that in such an eventuality the second suit namely the present suit becomes not maintainable as being dubbed as an abuse of the process of the court. The said view of the learned Trial Judge appears to be quite justified.

(12) In view of the aforesaid state of the procedural provisions the present question will have to be resolved on the anvil of the inherent powers of the Court which flow in when other procedural provisions do not rise to the occasion and fail to offer a solution.

(13) The term abuse of the process of the court has been explained in Halsburys Laws of England Fourth Edition Vol. 9 para 38 as under :

"Abuse of process in general. The court has power to punish as contempt any misuse of the courts process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly deceiving the court or the courts officers by deliberately suppressing a fact or giving false facts may be a punishable contempt". It has been further observed in the said para that certain acts of a lesser nature may also constitute an abuse of process as for instance initiating or carrying on proceedings which are wanting in bona fides or which are frivolous vexatious or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court by exercising its statutory powers its powers under rules of court or its inherent jurisdiction can give an adequate remedy it will not in general punish the abuse as contempt of court.

(14) The aforesaid passage thus makes it clear that certain acts of the parties while they appear before the court may amount to contempt of court and also to a lesser degree may constitute abuse of the process of the court and in such cases the court has ample power to strike off the pleadings as frivolous vexatious oppressive or as wanting in bona fides.

(15) The totality of the admitted facts of this case which have been mentioned by me in the earlier part of this judgment leaves no room for doubt that the plaintiff appellant was out to be smart with the court and was interested in playing hide and seek with the court and for certain reasons best known to her filed the present suit suppressing all the relevant facts pertaining to the prior suit which was pending in the same court against the same defendant for the same relief and based on the same cause of action. Such an action of the plaintiff can certainly be said to be an abuse of the process of court wanting in bona fides and being purely vexatious and frivolous to the defendant. House of Lords in the case of Rev. Oswald Joseph Reichel Clerk (Pauper) v. The Rev. John Richard Magrath reported in 14 Appeal Cases. p. 665 had an occasion to deal with a situation resulting in the abuse of the process of court. In the aforesaid case it has been observed by the House of Lords that there is an inherent jurisdiction in the Court to strike out a statement of defence which is found to be frivolous and vexatious and an abuse of the procedure. In the said case the appellant Rev. Oswald Joseph Reichel brought an action against his Bishop and the patrons of a benefice claiming a declaration that he was vicar of the benefice and that an instrument of resignation which he had executed was void. He also prayed for an injunction to restrain the Bishop from instituting and the patrons from presenting any other person to the benefice. The action was tried and judgment was given against the appellant on the ground that the vicarage was void by reason of his resignation thereof with the consent of the Bishop. Afterwards the respondent before the House of Lords Rev. John Richard Magrath having been duly appointed to the benefice as the appellants successor brought an action against the appellant claiming a declaration that the respondent was vicar and a perpetual injunction to restrain the appellant from depriving the respondent of the use and occupation of the house and lands. While opposing the said proceedings taken out by the respondent Rev. John Richard Magrath the appellant Rev. Oswald Joseph Reichel in his statement of defence set up the same case as that on which he had been defeated in the action in which he was plaintiff. The question was whether such a statement of defence amounted to frivolous or vexatious statement or abuse of the process of court. The court of appeal took the view that it did so amount and hence passed an order striking out the said statement of defence. That order of the Court of Appeal was challenged by the appellant before the House of Lords. Lord Halsbury in the aforesaid decision of the House of Lords England took the view affirming the decision of the court of Appeal that there was an inherent jurisdiction in the Court to strike out the statement of defence as frivolous and vexatious and an abuse of the procedure and to enter judgment for the plaintiff with a declaration and injunction as claimed. Lord Halsbury L.C. in a short and pithy judgment observed that it would be a scandal to the administration of justice if the same question having been disposed of by one case the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It was further held by Lord Halsbury that there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and therefore this appeal must likewise be dismissed. Lord Watson and Lord Herschell concurred with the said view of Lord Halsbury.

(16) So far as our courts are concerned inherent power to pass appropriate orders in the interest of justice and for preventing abuse of the process of court is enshrined in sec. 151 of the C.P.C. In the absence of any other positive provision in the Code of Civil Procedure directly applicable to the situation like the present one sec. 151 C.P.C. can squarely be pressed in service. The Court will have ample power and jurisdiction to pass appropriate orders in such cases in the aid of justice and for preventing abuse of the process of court. Once it is found that the plaintiff had tried to be smart with the court and had abused the process of the court the court will have jurisdiction in exercise of its inherent powers under sec. 151 C.P.C. to pass appropriate orders and to hold that it will not aid such a plaintiff who has not come with clean hands and that the proceedings taken out by her which are found to be tainted and which can be dubbed as the abuse of the process of the court should be consigned to the record room without passing any orders on merits and that they should be treated as not maintainable.

(17) Similar questions as the present one had in fact arisen in the past and the courts when confronted with such situations had devised suitable formula for dealing with such actions which were treated as still born. A case directly on the point came up for consideration before a Division Bench of the Lahore High Court in Amir Din Shahab Din v. Shiv Dev Singh Jhanda Singh reported in A.I.R. 1947 Lahore 102. The Division Bench of the Lahore High Court consisting of Chief Justice (Offg.) Abdul Rashid and Achhu Ram J. therein dealt with a situation very much akin to that fund in the present case. The facts of the case before toe Lahore High Court were that one Sardar Shiv Dev Singh as the plaintiff had brought a suit against 12 of his tenants for a declaration to the effect that the manure which had been put by the defendants in his land could be used only by himself and could not be removed or disposed of by the defendants who had no right to or interest in the said manure and for the issue of a perpetual injunction restraining the defendants from removing the manure and from preventing the plaintiff from using it in any manner that he likes. The said suit proceeded to trial. Plaintiff examined a number of witnesses to prove the issues on which the burden lay on him. But ultimately the plaintiff found that the evidence of the witnesses examined by him was not palatable to him and his case seemed to be worsened by his own witnesses. Realising this difficulty the plaintiff abruptly switched over to another suit against the same defendants and on the same cause of action and sent to another Sub Judge for trial. Having thus switched over to another suit the plaintiff lost interest in the first suit filed against the defendants on 11 The first suit was fixed for hearing on 14-2-1944 and on this day the plaintiff remained absent with the result that the previous suit came to be dismissed under O. 9 Rule 8 C.P.C. Thereafter the plaintiff purused vigorously the second suit on the same cause of action and against the same defendants. The defendants promptly took up a plea in the second suit that it was barred by reason of the provisions of O. 9 Rule 9 C.P.C. It must be said that the said plea was not strictly accurate as the second suit was not filed after the dismissal of the prior suit but it was filed during the pendency of the previous suit when the plaintiff had lost interest in the prior suit on account of the dissatisfactory performance of his witnesses. The learned Trial Judge in that case upheld the contention of the defendants that the second suit was barred under O. 9 Rule 9. That decision was obviously untenable and hence the first Appellate Court reversed the said decision. The defendants then took up an alternative contention before the Appellate court that in fact the second suit was an abuse of the process of court but the First Appellate Court turned down this contention and remanded the suit for being proceeded with on merits in the trial court. The defendants thereafter preferred a second appeal to the Lahore High Court which came before a learned Single Judge who referred it to a larger Bench. The Division Bench which ultimately decided the second appeal took the view that the second suit could not be said to be barred by O. 9 Rule 9 C.P.C. but it was certainly an abuse of the process of court. Achhu Ram J. on behalf of the Division Bench observed that the second suit was liable to be dismissed as offending against the well known maxim that no one shall be twice vexed with one and the same cause and on the ground of its institution and trial amounting to an abuse of the process of the Court. That the maxim of law prohibiting a defendant being twice vexed with the same cause is very well recognised and forms the foundation of the rules of law embodied in 0. 2 R. 1 and 0 2 R. 2 Civil P. C. It was further observed that 0. 2 R. 1 provides that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in disputes and to prevent further litigation concerning them while O. 2 Rule 2 declares that where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim which he is entitled to make in respect of the cause of action or being entitled to more than one relief in respect of the same cause of action omits to sue for all such reliefs he shall be debarred from suing for the portion of the claim omitted or relinquished or for the relief or reliefs not claimed in the first suit. Analysing the scheme of the C.P.C. it was further observed in the aforesaid decision by Achhu Ram J. that ordinarily only one suit can be brought by a plaintiff against the same defendant in respect of the same cause of action. Where Legislature has thought it fit to allow another suit on the same cause of action it has expressly said so. Reference in that connection may be made to 0. 9 R. 4 Civil P. C. where it is provided that a plaintiff whose suit has been dismissed under 0. 9 R. 3 in the absence of both the parties may subject to the law of limitation bring a fresh suit on the same cause of action. The mere circumstance that in 0. 9 R. 9 and 0. 23 R. 1 an express provision has been made against the maintainability of a second suit on the same cause of action should not be taken to mean that in other cases which are not covered by the provisions of law embodied in these rules a second suit is competent. It was further observed that in 0. 9 R. 9 an express provision had to be made precluding the plaintiff from bringing a fresh suit in respect of the same cause of action where his suit has been dismissed wholly or partly under the preceding rule because R. 4 had provided for a second suit in a case where the plaintiffs suit had been dismissed in the absence of both the parties the object of the Legislature obviously being to bring out very clearly the distinction between a case where a suit is dismissed for default in appearance by both the parties and a case where a suit is dismissed for default in appearance by the plaintiff alone.

(18) Achhu Ram J. in the aforesaid Lahore case pointed out that the view that unless the case is clearly covered by 0. 9 R. 9 or O. 23 R. 1 sub-R. (3) Civil P. C. a second suit by the same plaintiff against the defendant or the same cause of action is not barred and that it is always open to plaintiff during the pendency and before the final disposal of his first suit to bring another suit on the same cause of action runs counter to the aforesaid maxim of law and cannot therefore be accepted. It was ob served that if such position was permitted as correct it would lead to very disastrous consequences. A plaintiff on finding at the conclusion of the trial that the evidence has all gone against him and that his suit must fail on the merits has according to this view only to file another suit on the same cause of action sometime before the final disposal of his first suit and then he can safely give a go buy to the first suit withdraw it or have it dismissed in default and proceed merrily with the second suit. If he finds himself faced with a similar situation at some stage in the second suit also there will be nothing to prevent him from repeating the same process once again. So long as limitation for bringing an action on the particular cause of action subsists he can go on filing suits after suits and thus harrass the poor defendant to any extent that he pleases. It was observed in that connection that it was difficult to believe that while by reason of the rule of law stated in O. 2 R. 2 a plaintiff who has either intentionally or just inadvertently omitted to claim one or more of the reliefs to which he is entitled in respect of the same cause of action cannot even on the day following that on which he brought his first suit remedy the mischief caused by his omission and claim the relief so omitted by filing another suit he can if he so chooses file another suit for the same relief at any time while the previous suit is pending. It was ultimately observed in the aforesaid decision that the institution of the second suit by the plaintiff was clearly an attempt to abuse the process of the court and hence the second suit was liable to be dismissed.

(19) The aforesaid decision of the Division Bench of Lahore High Court succinctly analyses various aspects of the procedural law which would be applicable to such case. I fully concur with the reasoning and the ultimate conclusion to which the learned Judges of the Lahore High Court arrived at in the aforesaid decision. Applying the principles enunciated by Lahore decision to the facts of the present case which are almost parallel to those which had arisen for decision of the Division Bench of the Lahore High Court it must be held that the present suit filed by the appellant plain tiff clearly amounted to abuse of the process of the court and was liable to be dismissed in exercise of the inherent jurisdiction of the court under sec. 151 of the C. P. C.

(20) A learned Single Judge of the Punjab High Court also had an occasion to examine a somewhat similar situation in the case of Harnam Singh v. Bakhshish Singh and Ors. reported in A. I. R. 1952 Punjab 144. The plaintiff had brought a suit for being declared as the legally adopted son of his adoptive father on the ground of adoption by the widow of the father. In the said suit he led evidence to prove his case but subsequently he found that he was not likely to succeed. At that stage he abruptly switched over to another suit which he filed with slight variation on the same allegations for obtaining the same relief against the same defendant. But in the second suit during the pendency of the first suit he contended that he was adopted by the adoptive father and not by the widow. Having filed the aforesaid second suit he applied for permission to withdraw the first suit under the provisions of O. 23 R. 1 C. P. C. The question was whether such permission could be granted to him to withdraw his first suit. Kapur J. in the aforesaid decision took the view that such plaintiff cannot be permitted to withdraw his prior suit and cannot be permitted to file the second suit as it amounted to abuse of the process of the court. The learned Single Judge among others referred to the aforesaid decision of the Division Bench of the Lahore. High Court in the case of Amir Din Shahab Din (supra). A Division Bench of the Andhra High Court in the case of R. Narapa Reddy v. Jagarlamudi Chandramoulsi and Ors. reported in A. I. R. 1967 Andhra Pradesh 219 has also. an occasion to consider. the question whether the act of party who tries to by pass the process of the court. amounts to contempt of court or whether in certain circumstances even though. not. amounting to contempt of court it would still be treated as abuse of the process of the. court. The facts before the Andhra High Court in. R. Narapa. Reddy (supra) were that in a writ petition the High Court passed an order that the Election to the Board of Directors of the Guntur. District Cooperative Marketing Society should be carried out by the Joint Registrar of Cooperative societies of jurisdiction. other than that of Guntur. According to these directions the Registrar appointed joint Registrar of Cooperative Society (Farming) Hyderabad as Election Officer. A suit was filed by a member of the Society in the Court. of District Munsiff Guntur impleading the Joint Registrar of Cooperative Societies Hyderabad designated. as Election Officer to conduct the election to the Board of Directors of the District Marketing Society as the sole defendant. In the suit the plaintiff prayed for a consequential injunction to restrain the defendant (Joint Registrar of Cooperative Societies) from conducting the election to the Board of Directors scheduled to be held on November 11 1964 On November 10 1954 the District Munsiff issued an interim injunction restraining the Joint Registrar from conducting the election scheduled to be conducted on November 11 1964 The order was served on the Joint registrar who passed an order that he would not be holding the election as scheduled as per orders of the District Munsiff on the scheduled day. The majority of the General body left the place but the minority elected one of them as presiding officer and elected the governing body and office bearers of the Marketing Society. It was contended before the Andhra Pradesh High Court that the person who got himself elected as Presiding Officer and those who got themselves elected. on the governing body which included the person who had filed suit and had obtained interim injunction from the Munsiff had committed contempt of court by violating orders of the High Court and of the District Munsiff. It was also contended that the District Munsiff as also the person who had filed the suit in. his Court were also guilty of contempt inasmuch as they. restrained the Joint Registrar who was directed by the High Court to hold the election.

(21) While negativing the plea on. behalf of the applicants that the aforesaid acts amounted to contempt of High Court the Andhra Pradesh High. Court made certain pertinent observations regarding the conduct of patties. which. even though may not. amount to strictly contempt of court but still constituted an abuse of the process. of court. It was observed that abusing the process of the Court is a term generally applied to a proceeding: which is wanting in bona fides and is frivolous vexatious on oppressive. Making use: of the process of the Court as a device to help the jurisdiction of a civil court has been held to amount to an abuse of the process of the Court.

(22) A resume of the aforesaid decisions leaves no room for doubt that the court has inherent jurisdiction in suitable cases to set its foot down on smart practices which may be followed by any party before it and in such cases such parties do not deserve any relief from the court and the Court is entiled to strike off the proceedings of such parties and treat the proceedings at the instance of such parties to be not maintainable as amounting to clear abuse of the process of the Court.

(23) As I have stated above the facts in the present case are almost similar to those which arose for consideration before the Division Bench of the Lahore High Court in Amir Din Shahab Dins case (supra). The plaintiff in the present case having obtained ad interim injunction as early as in March 1973 from the City Civil Court found at a later stage that she would meet with real difficulties before the ad interim injunction is confirmed and hence with a view to bypass such an inconvenient situation she filed the second suit i.e. the present suit in September 1973 against the same defendant on the same cause of action for the same relief and completely suppressed the fact that she had filed a similar suit on previous occasion which was pending in the same Court. Such an act of the plaintiff must necessarily be styled as an abuse of the process of the court. Thus the plaintiff tried to be smart with the Court and she must take the consequence of her said act and her second action must therefore necessarily be consigned to the record room as being not maintainable and must be held incompetent. The learned Trial Judge was in my opinion quite justified in taking the view that the second proceeding was incompetent and rightly dismissed the said second suit in exercise of his powers under sec. 151 C.P.C.

(24) Mr. H. B. Shah for the appellant submitted that it is true that the appellant plaintiff had filed a second suit on the same cause of action namely that she was the coowner of the suit property and it was equally true that the parties were the same the cause of action was the same and even the reliefs prayed for were the same but nonetheless the defendant could have easily pointed out this fact by appearing in the second suit and no earthly purpose would be served of the plaintiff by merely duplicating the courts work by filing a second suit. This submission of Mr. Shah cannot be of any avail to the plaintiff. It leads nowhere. Whether the defendant being vigilant could have pointed out this smart practice on the part of the plaintiff is totally irrelevant for judging the conduct of the plaintiff. The short question is whether the plaintiff can with immunity be permitted to prosecute the present proceedings by completely ignoring previous proceedings at a stage when the latter proceedings became a burden to her and could be allowed merrily to go on with the second suit on the same cause of action against the same party The answer is obviously in the negative as it clearly amounts to an abuse of the process of the court. Hence the second suit as filed by the plaintiff was obviously a still born suit and was rightly dismissed by the Trial Court. I therefore confirm the finding of the trial court on issue No. 4-A when it held that the second suit namely the present suit was not maintainable. Once the aforesaid conclusion is reached it becomes obvious that the findings reached by the learned Trial Judge on merits of the case on issues Nos. 1 2 and 3 would become totally redundant and irrelevant and in a way incompetent. If the Trial Court found that the present suit was not maintainable from its very inception it could not have arrived at any finding on merits of the controversy between the parties. Hence findings on issues Nos. 1 2 and 3 were totally irrelevant and were not required to be decided by the trial court. I therefore did not permit the parties to address me on the findings reached by the Trial Court on these issues and I hold that these findings cannot be binding to either side as they were arrived at by the court which could not have entertained the suit from its very inception. Mr. Shah wanted to point out to me an admission made by the defendant at Exh. 70 in his cross examination when he had stated that he had not got the partition of the suit

(25) As a result of the aforesaid discussion it must be held that the learned Trial Judge was quite justified in dismissing the present suit of the appellant as incompetent and not maintainable. The inevitable result is that this appeal must fail and it has to be dismissed with costs. Before parting with this judgment I may take note of one request of Mr. H. B. Shah for the appellant. He submitted that pending the suit in the trial court as well as appeal before this court the defendant respondent has been restrained from putting up a compound wall and before this court an undertaking was given by the respondent agreeing not to make any construction of the compound wall during the pendency of this appeal and the said status quo is continued till today. As I am dismissing the appeal I may continue the said status quo for some time more to enable the plaintiff to get a certified copy of this judgment and to pursue suitable remedy for which she may be advised. Mr. M. C. Shah for the respondent defendant has opposed this request of Mr. H. B. Shah. Taking an over all view of the situation I find that the request made by Mr. H. B. Shah is reasonable. I therefore grant four weeks time to the appellant to enable her to take necessary steps in the matter if so advised and I direct that the respondent shall maintain the status quo and shall not put up any further construction of the compound wall in the meanwhile. Appeal is accordingly dismissed with costs.Orders accordingly.Appeal dismissed.