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of <h1>Appeal dismissed for second suit after withdrawal without permission. Plaintiff cannot refile. Costs awarded.</h1> <h3>Budh Prakash Rastogi Versus Santosh Pal Dublish</h3> The court dismissed the appeal, ruling that the second suit was not maintainable as the first suit was withdrawn without court permission. The court ... - Issues:1. Suit for dissolution of partnership firm and accounting.2. Maintainability of the second suit filed after withdrawal of the first suit.Analysis:Issue 1: Suit for dissolution of partnership firm and accountingThe plaintiff filed a suit for dissolution of the partnership firm 'Rajiv Prakashan' and accounting against the defendant. The partnership firm was formed on 1-4-1968 with only the plaintiff and defendant as partners after the dissolution of a previous firm with the same name. The plaintiff sought accounting from April 1966 to November 1969. The trial court decreed the suit for accounting, and on appeal, the first appellate court decreed the suit for accounting from 1-4-1969 to 15-11-1969. The plaintiff, dissatisfied with the accounting period, filed a Second Appeal contending that accounts should be provided from 1-4-1966 to 27-3-1970. The plaintiff argued that the firm did not dissolve on 16-11-1969.Issue 2: Maintainability of the second suitThe defendant raised a preliminary objection on the maintainability of the second suit (No. 62 of 1970) after the withdrawal of the first suit (No. 933 of 1969). The defendant argued that the withdrawal of the first suit without court permission barred the plaintiff from filing a fresh suit for the same cause of action. The plaintiff contended that the withdrawal was due to an oral settlement and subsequent non-compliance by the defendant. The court analyzed Order 23, Rule 1 of the Civil Procedure Code, which allows a plaintiff to abandon or withdraw a suit. The court emphasized that without court permission, a plaintiff withdrawing a suit is precluded from instituting a fresh suit for the same cause of action. The court rejected the plaintiff's argument that the withdrawal was not under Rule 1(3) and clarified that the right to withdraw without permission does not permit filing a new suit for the same cause of action.In conclusion, the court dismissed the appeal, stating that the second suit was not maintainable due to the withdrawal of the first suit without court permission. The court noted that the defendant did not raise this issue earlier, and hence, the dismissal was limited to the appeal and not the part of the decree in favor of the appellant. The appeal was dismissed with costs throughout.
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