P. RAJESHWARI Vs. SRINIVASA AND ORS.

JUDGEMENT

(1.) This revision petition is filed by defendant No.5 in O.S.No.144/2012. She is challenging the order passed by the Court below dismissing I.A.No.3 filed by her under Order XXIII, Rule 1, CPC read with Order II, Rule 2 and Section 12, CPC praying for dismissal of the suit as not maintainable.

(2.) Briefly stated, facts leading to this revision petition are that respondents 1 to 5 herein have filed a suit O.S.No.144/2012 seeking declaration that they were the absolute owners in lawful possession and enjoyment of the suit schedule property and for permanent injunction against the defendants from interfering with their peaceful possession and enjoyment. They have also sought for a declaration that the Sale-Deeds dated 24.07.1996 and 01.08.1998 were obtained by defendant Nos.2 and 5 respectively by playing fraud and therefore, they were not binding on the plaintiffs.

(3.) Plaintiffs had earlier filed a suit in O.S.No.237/2007 seeking partition and separate possession of their share in the family properties. The said suit was withdrawn stating that it was not properly framed. However, no liberty had been reserved for filing a fresh suit. Therefore, defendant No.5 filed the present application seeking dismissal of the second suit O.S.No.144/2012 contending that withdrawal of the suit without permission to file fresh suit precluded the plaintiffs from filing fresh suit in respect of the subject-matter or part of the claim and hence, the suit was not maintainable as it was barred under Order XXIII, Rule 1, CPC.