DATTATRAY SADASHIV DAMLE Vs. VINAYAK RAMKRISHNA VAIDYA

JUDGEMENT

(1.) THE applicant is the defendant no.1 in Regular Civil Suit No.180 of 2004 which was filed on 7.9.2004. In this suit, he made an application under Order XXIII Rule 1(4) that the present suit should be dismissed because an earlier suit, viz., Suit No.82 of 2003 had been withdrawn and that the plaintiff had not mentioned the earlier suit in the present suit.

(2.) THE respondent no.1 filed Civil Suit No.82 of 2003 on 15.3.2003 for an injunction simplicitor. That suit has been withdrawn on 6.11.2004. The learned counsel states that before withdrawing that suit, the respondent no.1 filed the present suit, being Suit no.180 of 2004, hereinafter referred to as the "subsequent suit" on 7.9.2004. That suit is pending. In the subsequent suit, the applicant applied for dismissal of the subsequent suit on the ground that the earlier suit has not been mentioned in the subsequent suit and has been withdrawn. According to the applicant, had the first suit not been withdrawn, the respondent no.1 would not have been entitled for any relief in the subsequent suit because the earlier suit was not mentioned in the subsequent suit. Merely because the earlier suit is withdrawn, the wrong committed by the respondent no.1, viz., of not mentioning the earlier suit in the subsequent suit ought not to be overlooked and the subsequent suit ought to be dismissed.

(3.) IN the first place, sub-rule (4) prohibits the plaintiff from instituting a fresh suit where he has withdrawn an earlier suit without permission of the Court. In terms, this rule does not apply where the subsequent suit has already been instituted and the two suits have been pending simultaneously. As in the present case, the subsequent suit has been pending from 7.9.2004 and the present application has been made under Order XXIII on 4.3.2006. The phrase "shall be precluded from instituting any fresh suit" in sub-rule (4) cannot mean that the plaintiff shall also be precluded from continuing the subsequent suit if already instituted. The term "shall be precluded from instituting any fresh suit" is referable to sub-rule (3) which requires a plaintiff to apply for permission to withdraw from a suit with liberty to institute a fresh suit in respect of the same subject-matter. Sub-rule (3) does contemplate a situation where there is only one suit in existence and the subsequent suit is not yet filed. Thus, sub-rules (3) and (4) contemplate the requirement that the plaintiff who has instituted only one suit to seek permission of the Court before instituting another suit and bars a fresh suit which is instituted without the necessary permission.