KALOOT SAO Vs. T NAME NOT KNOWN

JUDGEMENT

(1.) This second appeal by the defendants is directed against the decree of their eviction from certain premises in the town of Patna, fully described in the plaint. They are tenants under the plaintiff-respondent, who is the owner of the property. The plaintiff earlier filed T. S. 87 of 1958 for eviction of the defendants on the grounds permissible under the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'the Act'), A decree was passed in favour of the plaintiff by the first appellate court and the defendants filed S.A. 518 of 1960 in the High Court. No notice under Section 106 of the Transfer of Property Act had been served by the plaintiff before filing the suit and a point was taken by the defendants on the basis of the Full Bench decision in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401) (FB) that the suit was not maintainable. The second appeal was taken up for hearing on 3-2-1966. When the point was taken, a prayer on behalf of the plaintiff was made for permission to withdraw the suit. The defendants did not raise any objection to the prayer which was allowed and the suit was permitted to be withdrawn. The plaintiff, thereafter, served a notice under Section 106 of the T. P. Act on the defendants, and after the period mentioned in the notice was over, the present suit was filed.

(2.) The defendants filed similar written statements raising several pleas, out of which, I may at this stage, in view of the limited argument of Mr. R. S. Chatterjee on their behalf, mention only one, namely, that the suit is not main- tainable. All the issues in the suit were decided by the trial court against the defendants and in favour of the plaintiff excepting the issue of maintainability of the suit. The court held that although the suit was not barred by res judicata, but it was not maintainable in view of the provisions of Order XXIII Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'the Code).' The plaintiff, thereafter, appealed. The lower appellate court decided all the issues against the defendants including the issue of maintainability of the suit and passed a decree for their eviction.

(3.) Mr. R. S. Chatterjee, appearing for the appellants, contended that as the earlier suit had been withdrawn without liberty to institute a fresh suit, the present suit must be held to be barred under Sub-rule (3) of Order XXIII Rule 1 of the Code, which reads as follows;