Case Note & Summary
The appellants, original plaintiffs, filed Special Civil Suit No.30 of 2007 seeking declaration that a sale deed was illegal, null and void. The respondents (defendants) filed applications under Order VII Rule 11(d) read with Section 151 CPC for rejection of the plaint on the ground that the same plaintiffs had earlier instituted Special Civil Suit Nos.27 of 2006 and 28 of 2006 for the same relief. In those earlier suits, the plaintiffs sought withdrawal with permission to file a fresh suit due to formal defects. The trial court granted conditional permission subject to payment of costs of Rs.15,000 within one month. The plaintiffs did not pay the costs. Consequently, the trial court rejected the plaint in the subsequent suit, holding that the condition precedent was not satisfied. The first appellate court confirmed this decision. In the second appeal, the High Court held that the concurrent findings were correct and that the plaint was rightly rejected as the earlier suits were withdrawn without complying with the condition, barring the fresh suit. The appeal was dismissed.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Conditional Withdrawal - The appellants had withdrawn earlier suits with permission to file fresh suit subject to payment of costs within one month. The costs were not paid. The subsequent suit was held to be barred as the condition precedent was not fulfilled. The concurrent findings of the trial court and first appellate court rejecting the plaint were upheld. (Paras 2-4)
Issue of Consideration
Whether the plaint in Special Civil Suit No.30 of 2007 was liable to be rejected under Order VII Rule 11(d) CPC on the ground that the earlier suits were withdrawn without complying with the condition of payment of costs, thereby barring a fresh suit.
Final Decision
The second appeal is dismissed. The concurrent judgments rejecting the plaint are upheld.
Law Points
- Order VII Rule 11(d) CPC
- Section 151 CPC
- res judicata
- conditional withdrawal
- payment of costs as condition precedent
