ASHUTOSH SINGH Vs. CHANDRAWATI DEVI

JUDGEMENT

(1.) HEARD learned counsel for the peti tioner and learned counsel for opposite party no. 2 and 4. No one appears for the remaining opposite parties, although notices had been sent and validly served upon them.

(2.) THIS civil revision has been filed by the petitioner (one of the plaintiffs) challenging order dated 2.6.2005 by which the learned Munsif, Vaishali at Hajipur, rejected the plaintiff 'splaint of Title Suit No. 13 of 2004 under the provision of Order XXIII, Rule 1 (4) of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity). Earlier one of the plaintiffs of the aforesaid title suit who is opposite party no. 7 in the instant civil revision, namely Shambhu Sharan, had filed Title Suit no. 149 of 1996 against one of the defendants in the present suit, namely Dinanath Gupta (Opposite Party No. 4) and his wife only for grant of permanent injunction against the said two defendants of that suit. Subsequently Opposite Party No. 7, who was the plaintiff of that suit, withdrew the suit on 12.1.2004 without obtaining any permission of the court for filing a fresh suit. It transpires that subsequently Title Suit No. 13 of 2004. was filed by seven plaintiffs, namely petitioner and Opposite Parties No. 5 to 10 against four defendants, namely Opposite Parties No. 1 to 4, for declaration of title and also for declaration of their right of easement and also for removal of encroachment and constructions made by the defendants, but no relief of injunction was sought in the present suit.

(3.) HOWEVER , at the time of hearing the suit in admission, the learned court below by its impugned order dated 2.6.2005 dismissed the suit under the provision of Or. 7, R. 11(d) of the Code holding that the suit was barred under the provision of Or. 23, R. 1(4) of the Code as one of the plaintiffs of the present suit had filed earlier a suit for the same property which was withdrawn without taking permission for filing a fresh suit.