Case Note & Summary
The case involves a Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (CPC) filed by the applicants (original defendants) against an order dated 09.10.2007 passed by the Learned Civil Judge, Senior Division, Baramati, in Special Summary Suit No. 30 of 2007. The applicants sought rejection of the plaint in a subsequent suit under Order 7 Rule 11(d) read with Order 23 Rules 3 and 4(b) CPC, arguing that the plaintiff had previously withdrawn a summary suit (Special Summary Suit No. 30 of 2007) unconditionally without liberty to file a fresh suit, and thus the subsequent suit (Special Civil Suit No. 128 of 2007) was barred by law. The trial court rejected the application, leading to the revision. The High Court examined the order of withdrawal, which merely permitted the plaintiff to withdraw the suit to convert it into a special civil suit, without any hearing of the defendants. The Court noted that the withdrawal order was not a judgment or decree, and the bar under Order 23 Rule 1 CPC applies only when the suit is withdrawn after the defendant has been heard. Since the defendants were not heard before the withdrawal, the subsequent suit was not barred. The Court dismissed the revision, holding that the plaint disclosed a cause of action and was not barred by any law.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11(d) CPC - Bar by Law - Withdrawal of Suit - The issue was whether a subsequent suit on the same cause of action is barred when the previous suit was withdrawn unconditionally without liberty to file a fresh suit. The Court held that the order permitting withdrawal was not a judgment or decree, and the bar under Order 23 Rule 1 applies only when the suit is withdrawn after the defendant has been heard. Since the withdrawal was before any hearing of the defendant, the subsequent suit was not barred. (Paras 1-6)
B) Civil Procedure - Withdrawal of Suit - Order 23 Rule 1 CPC - Liberty to File Fresh Suit - The Court clarified that the requirement of liberty under Order 23 Rule 1 is to avoid the bar of res judicata, but the absence of liberty does not automatically bar a fresh suit if the withdrawal was unconditional and before the defendant's hearing. The Court relied on the principle that the bar under Order 23 Rule 1 applies only when the suit is withdrawn after the defendant has been heard. (Paras 5-6)
Issue of Consideration
Whether the subsequent suit is barred by law under Order 7 Rule 11(d) CPC when the previous suit was withdrawn unconditionally without liberty to file a fresh suit.
Final Decision
The High Court dismissed the Civil Revision Application, upholding the trial court's order rejecting the application for rejection of plaint. The Court held that the withdrawal order was not a judgment or decree, and the bar under Order 23 Rule 1 CPC applies only when the suit is withdrawn after the defendant has been heard. Since the defendants were not heard before the withdrawal, the subsequent suit was not barred.
Law Points
- Order 7 Rule 11(d) CPC
- Order 23 Rule 1 CPC
- Withdrawal of suit without liberty
- Bar by law
- Rejection of plaint
Case Details
2019 LawText (BOM) (08) 78
Civil Revision Application No. 264 of 2014
S.M. Oak i/b Sagar Anant Joshi for Petitioners, Shriram S. Kulkarni for Respondent
Chandrakant Pandurang Shingade and Sau. Manjusha Chandrakant Shingade
Shri. Walchand Gulabchand Bora
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil Revision Application against order rejecting application for rejection of plaint under Order 7 Rule 11(d) CPC.
Remedy Sought
Applicants (original defendants) sought rejection of plaint in Special Civil Suit No. 128 of 2007 on the ground that it was barred by law due to unconditional withdrawal of previous suit without liberty to file fresh suit.
Filing Reason
The respondent/plaintiff had previously filed Special Summary Suit No. 30 of 2007, which was withdrawn unconditionally without liberty to file a fresh suit. Subsequently, the plaintiff filed Special Civil Suit No. 128 of 2007 on the same cause of action. The applicants contended that the subsequent suit was barred by Order 23 Rule 1 CPC.
Previous Decisions
The trial court rejected the application for rejection of plaint, leading to the revision.
Issues
Whether the subsequent suit is barred by law under Order 7 Rule 11(d) CPC when the previous suit was withdrawn unconditionally without liberty to file a fresh suit.
Submissions/Arguments
Applicants argued that the previous suit was withdrawn unconditionally without liberty to institute a fresh suit, and thus the subsequent suit on the same cause of action is barred by Order 23 Rule 1 CPC.
Respondent argued that the withdrawal was before any hearing of the defendants and the order was not a judgment, so the subsequent suit is not barred.
Ratio Decidendi
The bar under Order 23 Rule 1 CPC against filing a fresh suit on the same cause of action applies only when the suit is withdrawn after the defendant has been heard. An unconditional withdrawal without hearing the defendant does not bar a subsequent suit, as the withdrawal order is not a judgment or decree.
Judgment Excerpts
It is an application under Section 115 of the Civil Procedure Code, 1908, taking exception to the order dated 09.10.2007, passed by the Learned Civil Judge, Senior Division, Baramati, in Special Summary Suit No. 30 of 2007.
The applicant-defendant filed an application under Order 7, Rule 11(d) r/w., Order 23, Rule 3 and 4(b) of the Civil Procedure Code, 1908 and urged for rejection of plaint.
It is applicant's case that soon thereafter Respondent instituted Special Civil Suit No. 128 of 2007 on 20.02.2008 on same cause of action, as was in the previous suit.
The previous suit was withdrawn by the Plaintiff unconditionally without liberty to institute a fresh suit in terms of Rule 3 r/w. Rule 4 and Order 23 of the CPC.
The order permitting withdrawal was not a judgment or decree, and the bar under Order 23 Rule 1 applies only when the suit is withdrawn after the defendant has been heard.
Procedural History
The respondent/plaintiff filed Special Summary Suit No. 30 of 2007, which was withdrawn on 09.10.2007. Subsequently, the plaintiff filed Special Civil Suit No. 128 of 2007 on 20.02.2008. The applicants/defendants filed an application under Order 7 Rule 11(d) CPC for rejection of plaint, which was rejected by the trial court. The applicants then filed Civil Revision Application No. 264 of 2014 before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order 7 Rule 11, Order 23 Rule 1, Order 23 Rule 3, Order 23 Rule 4
