DHARAM CHAND Vs. JOGESHWAR

JUDGEMENT

(1.) THIS revision petition has been filed by the defendants aggrieved by the order dated 28th September, 2006 passed by the learned Dist. Judge, Jalore rejecting the application of the defendants under Order 7, Rule 11, CPC seeking dismissal of the Civil Suit No. 14/2006 on the ground that the earlier civil suit filed by the plaintiff Jogeshwar, namely, Civil Suit No. 3/2003 was withdrawn by him under Order 23, Rule 1, CPC on 21-11-2005 without seeking any liberty from the Court to institute a fresh suit and therefore, the present suit subsequently filed was barred in view of Order 23, Rule 1, CPC and therefore, the suit deserved to be dismissed at the threshold on an application under Order 7, Rule 11, CPC.

(2.) MR. R. K. Thanvi, learned counsel appearing for the petitioners-defendants submitted that in the application seeking withdrawal of earlier Suit No. 3/2003, in which the plaintiff Jogeshwar claiming the same relief, namely, declaration of his adoption by the defendant Dharam Chand and the injunction against him from alienating his property was withdrawn simpliciter and the said suit was dismissed as withdrawn under order 23, Rule 1, CPC without any liberty on 21-11-2005 and therefore, the present Suit No. 14/2006 could not be instituted by the same plaintiff again claiming the similar relief of declaration of adoption and injunction and also cancellation of sale-deed of the property sold by the defendant Dharam chand in favour of the petitioners No. 2 to 9 and therefore, the said suit was barred and the learned Court below ought to have allowed the application filed by the defendants under Order 7, Rule 11, CPC and dismissed the said suit. He has, therefore, prayed that the present revision petition deserves to be allowed and the impugned order dated 28-9-2006 deserves to be quashed and set aside and the Suit No. 14/2006 deserves to be dismissed.

(3.) HE relied upon the decision of the allahabad High Court in the case of Budh prakash Rastogi v. Santosh Pal Dublish, reported in AIR 1998 All 84 wherein the allahabad High Court held that right of a partner of a partnership firm to ask for accounting from other partner of the firm is a substantive right. It can be enforced in law courts. However, once a suit is filed in pursuit of ] that right by the partner then withdrawal of the suit by that partner for one or the other reason amounts to abandonment of that vested right, which once abandoned cannot be claimed over again by filing another suit. He also relied upon the decision of Delhi High Court in the case of M/s. Shoes east Limited v. Jainender Jain, reported in 2002 All India High Court Cases 4890 in which Delhi High Court held that where the subsequent suit was filed seeking almost similar relief as sought for in the suit earlier filed which was withdrawn, without liberty from the Court to institute fresh suit, the said suit was barred under Order 23, rule 1, CPC and in the facts of the case obtaining before Delhi High Court, the suit came to be dismissed under Order 7, Rule 11, CPC by Delhi High Court exercising original jurisdiction.