RAJ BHATIYA Vs. CHANDER KANTEL

JUDGEMENT

(1.) WHILE deciding the prelimi -nary issue, the trial Court vide order impugn -ed in this revision petition, held the suit to be maintainable and directed for recording of the plaintiff's evidence. The order impugned is stated to be contrary to law and not sustainable.

(2.) THE facts giving rise to the filing of the present revision petition are : that the plain -tiff -respondent had filed a suit for ejectment on 6 -10 -1985 which was withdrawn and a fresh suit was filed on 25 -8 -1990 seeking eviction of the petitioner allegedly on iden -tical grounds. The defendant pleaded that the suit of the plaintiff was not maintainable in view of the provisions of Order XXIII, C.P.C. as the plaintiff had not reserved any right to file a fresh suit on the same grounds. The trial Court came to the conclusion that as the fresh suit has not been filed on the same cause of action, it was maintainable and could not be dismissed.

(3.) ORDER XXIII, Rule 1, C.P.C. provides that at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim and the Court, if satisfied, that the suit must fail by reason of some formal defect or that there were other suf -ficient grounds for allowing the plaintiff to institute a fresh suit, for the subject matter or part of the claim, grant him the permission to withdraw from such suit or abandon such part of the claim with liberty to institute fresh suit in respect of the subject -matter of such suit or such part of the claim. However, where the plaintiff withdraws from the suit or abandons part of a claim without the permis -sion, he shall be precluded from instituting any fresh suit in respect of such subject -matter or such part of the claim. No doubt, the plaintiff has a right to withdraw the suit even without permission, but, in that case he is precluded from suing again on the same cause of action unless a permission is obtained by him at the time of withdrawing of the suit.