M GOVINDARAJA NAICKCR Vs. RAMANUJA NAICKER

JUDGEMENT

(1.) PETITIONERS are defendants in O.S.No.471 of 1991 in the Court of the District Munsif, Chingleput. Respondent/plaintiff filed that suit for declaration of his title to the suit properties and for permanent injunction restraining the revision petitioners from disturbing his peaceful enjoyment of the said properties. Along with the suit he filed I.A.No.1878 of 1991 for permanent injunction. The revision petitioners resisted that application contending that plaintiff having filed an earlier suit O.S.No.91 of 1984 against them for the same relief in respect of the same property and the suit having been dismissed as not pressed and having been withdrawn with a liberty to file a fresh suit on the same cause of action cannot maintain the present suit and no injunction could be granted therein. In another suit O.S.No.251 of 1969 filed by him also he could not get any relief even though he pursued the case up to the High Court. And this is a third attempt to grab the property by the plaintiff. The defendants and their father Kathav-araya Naicker alone arc in enjoyment of the lands since 1907. The trial court rejected the conten-tionsof the defendants and granted the temporary injunction prayed for. And this revision is directed against the said order.

(2.) THE main argument of learned counsel for the revision petitioners is that the present action is barred under 0.23, Rule 1, C.P.C. THEre is no dispute that O.S.No.91 of 1984 the earlier suit filed by the plaintiff was dismissed as not pressed and no leave under 0.21, Rule 1, C.P.C. was obtained therein. However, it appears from the typed set of papers that the suit properties relate to 15 acres and 35 cents in Survey Nos. 129/1 and 129/9of Kunnathur village. THE extent claimed in Survey No. 129/1 is a part of larger extent of 17 acres and 88 cents. And in the earlier action this Court has pointed out that only on sub-division of the extent in the enjoyment of the plaintiff relief could be granted. THEreafter there was a subdivision in respect of the suit property measuring 15 acres and 35 cents and patta bearing No.272 has been issued in the name of the plaintiff by the survey authorities and the plaintiff has paid kist subsequent to the issuance of patta in his favour for faslis 1394 to 1400. No doubt, learned counsel for (he respondent submits that he was not given any notice prior to the sub-division of the survey number. In case the petitioners entertain any grievance in this connection, their remedy is to proceed before the proper forum. THEy cannot object to the issuance of patta in favour of the plaintiff in this action. Further, there is no evidence on the side of the revision petitioners to indicate their enjoyment of the disputed lands. So, we cannot hold that the trial court has committed any error in granting the injunction on the basis of the patta and kist receipts exhibited before it.

(3.) RULE 1 of O.23, Code of Civil Procedure entitles courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The principle underlying RULE 1 of 0.23 of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing the permission of the court to file fresh suit. The law confers upon a man no rights or benefits which he docs not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason, the Code in-sists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in RULE 1 (3) of O.2.3. The principle underlying the above rule is founded on public policy. Considering the controversy herein in the light of principles enunciated in the decision of the Supreme Court referred to above, there is no scope for holding that the subject-matter of both the suits are one and the same so as to attract the provisions of O.23, RULE 1, C.P.C. So, the impugned order does not warrant any interference.