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Issues: Whether the subsequent suit for dissolution and accounting was barred under Order XXIII, Rule 1 of the Code of Civil Procedure, 1908, after the earlier suit on the same subject matter had been withdrawn without leave to file a fresh suit.
Analysis: Order XXIII, Rule 1 permits a plaintiff to abandon a suit or withdraw from it, but fresh institution on the same subject matter is barred unless the Court grants permission under sub-rule (3). The absence of such liberty attracts sub-rule (4)(b), which precludes a fresh suit in respect of the withdrawn subject matter. The plea that the accounting claim was a recurring cause of action was rejected because the right to account between partners is a substantive right, but once a suit asserting that right is withdrawn without liberty, the same cause of action cannot be re-agitated by filing another suit. The challenge to maintainability was therefore accepted, though the Court confined the consequence to the appeal because no cross-objection had been filed against the decree already passed in favour of the appellant.
Conclusion: The subsequent suit was barred by Order XXIII, Rule 1(4)(b) of the Code of Civil Procedure, 1908, and the appeal failed.
Ratio Decidendi: A fresh suit on the same cause of action is barred when the earlier suit is withdrawn without the Court's leave to institute a new suit, and a partner's accounting claim does not become a recurring cause of action merely because the earlier suit was withdrawn.
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