Case Note & Summary
The revision petition was filed by the defendant No.5 in O.S.No.144/2012 challenging the order of the Senior Civil Judge, Anekal, dated 28.9.2013 dismissing I.A.No.3 filed under Order 23 Rule 1 read with Order 2 Rule 2 and Section 12 CPC. The plaintiffs (respondents 1 to 5) had filed the suit seeking declaration of ownership and permanent injunction, and also challenging two sale deeds as fraudulent. The defendant contended that the plaintiffs had earlier filed a similar suit (O.S.No.78/2008) which was withdrawn without liberty to file a fresh suit, and therefore the present suit was barred under Order 23 Rule 1 CPC. The trial court dismissed the application, holding that the earlier suit was withdrawn before the stage of filing written statement and issues, and the plaintiffs had not abandoned their claim. The High Court, in revision, examined the records and found that the earlier suit was withdrawn on 22.6.2012 with a memo stating that the plaintiffs intended to file a fresh suit. The court noted that the principles of res judicata and constructive res judicata under Order 2 Rule 2 CPC would apply only if the earlier suit had been decided on merits. Since the earlier suit was withdrawn without adjudication, the bar did not apply. The High Court held that the trial court's order was a discretionary order and did not suffer from any jurisdictional error or material irregularity warranting interference under Section 115 CPC. The revision petition was dismissed.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order 23 Rule 1 CPC - Dismissal of Suit - The defendant filed an application seeking dismissal of the suit on the ground that the plaintiffs had earlier withdrawn a similar suit without liberty to file a fresh suit. The trial court dismissed the application. The High Court held that the earlier suit was withdrawn before the stage of filing written statement and issues, and the plaintiffs had not abandoned their claim but sought to file a fresh suit on the same cause of action. The court found that the trial court's order was not erroneous and did not warrant interference under Section 115 CPC. (Paras 1-10) B) Civil Procedure - Res Judicata - Constructive Res Judicata - Order 2 Rule 2 CPC - The court observed that the principles of res judicata and constructive res judicata would apply only if the earlier suit had been decided on merits. Since the earlier suit was withdrawn without adjudication, the bar under Order 2 Rule 2 CPC did not apply. The court noted that the plaintiffs had not omitted any part of the claim in the earlier suit, and the withdrawal was not a bar to the subsequent suit. (Paras 5-8) C) Civil Procedure - Revision - Section 115 CPC - Interference with Discretionary Order - The High Court held that the trial court's order dismissing the application was a discretionary order and did not suffer from any jurisdictional error or material irregularity. The revision petition was dismissed as the order was not shown to be perverse or contrary to law. (Paras 9-10)
Issue of Consideration
Whether the trial court was justified in dismissing the application filed by the defendant under Order 23 Rule 1 read with Order 2 Rule 2 and Section 12 CPC seeking dismissal of the suit on the ground that the plaintiffs had earlier withdrawn a similar suit without liberty to file a fresh suit.
Final Decision
The revision petition is dismissed. The order dated 28.9.2013 passed by the Senior Civil Judge, Anekal, on I.A.No.3 in O.S.No.144/2012 is confirmed.
Law Points
- Order 23 Rule 1 CPC
- Order 2 Rule 2 CPC
- Section 12 CPC
- Res Judicata
- Constructive Res Judicata
- Withdrawal of Suit
- Leave to File Fresh Suit
