Res judicata and withdrawn suits: findings in a suit withdrawn with liberty to sue afresh did not bind the later tenancy proceeding.

A finding recorded in an earlier suit withdrawn with liberty to sue afresh did not operate as res judicata in later proceedings under Section 17(2) of the West Bengal Premises Tenancy Act, 1956. Once withdrawal with liberty is permitted, the suit is treated in law as having no existence, the parties revert to their pre-suit position, and the bar in Order 23 Rule 1(4) CPC does not apply on those facts. The earlier findings therefore could not bind the subsequent proceeding, and the tenant's challenge on that ground failed; the revisional challenge was rejected and the order against the tenant was left undisturbed.

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Issues: Whether the finding recorded in the earlier withdrawn suit operated as res judicata in the present proceeding under Section 17(2) of the West Bengal Premises Tenancy Act, 1956.

Analysis: The earlier suit had been permitted to be withdrawn, and the application for liberty to bring a fresh suit had not been refused. On that footing, the withdrawal was treated as carrying liberty to sue afresh on the same cause of action. Once a suit is withdrawn with such liberty, it is treated in law as having no existence, and the parties are restored to the position they occupied before the suit was filed. The bar against a fresh suit under Order 23 Rule 1(4) of the Code of Civil Procedure, 1908 was held inapplicable on the facts, and the earlier findings could not bind the present proceeding.

Conclusion: The earlier finding did not operate as res judicata, and the tenant's challenge on that ground failed.

Final Conclusion: The revisional challenge was rejected, and the order against the tenant was left undisturbed.

Ratio Decidendi: A finding in a suit that has been withdrawn with liberty to sue afresh does not bind the parties in a later proceeding, because such a withdrawn suit is treated as non-existent in law and cannot operate as res judicata.

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