2007 (4) TMI 732

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....ht whatsoever, the suit 0. S. No. 298 of 1973 was dismissed after contest, in appeal , the first appellate Court decreed the suit in favour of the plaintiffs in the said suit , present plaintiff preferred Second Appeal , No. 8 of 1977, pending the said Second Appeal, said suit was permitted to be withdrawn i.e. suit 0.S. No.298 of 1973 but without liberty to file a fresh suit on the same cause of action, the defendants have no right in the suit property and the defendants who have no right are in enjoyment of the suit properties since 11.6:1973. It was the further case of the plaintiffs that the defendants have cut and carried away the Odai trees worth Rs. 1500/- the defendants have been tapping toddy from 42 palmyra trees since 1973 standing on the suit properties; the defendants have also cut and carried away two palmyra trees worth Rs. 200/-, the defendants have been cultivating ground nut and derived income of Rs. 1000/- , the palmyra trees would fetch an income of Rs. 400/- per annum; the defendants 1 and 3 are liable to pay Rs. 5100/- towards past mense profits and the plaintiffs are entitled for recovery of possession besides past and future mense profits from the defenda....

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....raws the suit without permission to institute fresh suit, the parties shall be precluded from instituting the fresh suit in respect of such subject matter or such part of the claim. The High Court observed that the earlier suit was dismissed as the defendant had withdrawn the earlier suit at the second appellate stage without securing necessary permission to institute a fresh suit. The High Court therefore, held that the general principles of res judicata get attracted and the defendant's claim is barred in view of the orders passed in the earlier suit between the same parties. It is to be noted that the first appellate court had observed that the withdrawal debarred the plaintiffs from filing a subsequent suit but it did not affect the defence of the defendants. Learned counsel for the appellants has referred to several decisions to contend that fresh suit is not barred and Order XXIII Rule 1 (4) has no application to the facts of the cases. There is no appearance on behalf of the respondent in spite of notice. In order to appreciate contention of learned counsel for the appellant, it would be appropriate to quote Order XXIII, Rule 1(4) the same read as follows: "1 (4....

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....h any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim- where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of one portion so omitted or relinquished. (3) Omission to sue for one of several reliefs   A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." Order II Rule 2 relates to the "relief which can be granted" while Order XXIII Rule 1 refers to the "subject matter". The grant of leave is not a matter of a right. Different subject matters are relatable to provisions contained in Order XXIII Rule 1. In both the present and the earlier suit the subject matter is essentially the same. By the impugned judgment it has been held that since the petitioners herein had withdrawn Suit No.298 of 1973 and since no liberty was given to the petitioners to institute a fresh suit, the petitioners were precluded f....

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....l of the appellant defendant's appeal to the court below can be supported on the short ground that that appeal did not lie. This is a case where the plaintiff withdrew his suit under Sub- rule (1) of Rule 1 of Order XXIII -- he was competent to do that and required nobody's permission since he was the sole plaintiff, the defendant, as we shall presently see being in no sense a plaintiff -- and the so-called dismissal of the suit as withdrawn by the trial Court was not really a dismissal but a mere recording of the fact of withdrawal. It determined none of the matters in controversy in the suit -- there was no claim by the defendant to be determined -- and is not a decree as defined by Section 2 (2) of the Code. It stands on the same footing as a dismissal under Rule 8 of Order IX which, because the word, "dismissal" implying a determination on the merits is used by the Rule, is expressly excluded from the definition in Section 2 (2) by Clause (b) of the exclusions therein. It is the provision in Sub-rule (3) of Rule 1 of Order XXIII (like that in Rule 9 of Order IX) and not any principle of res judicata that precludes the plaintiff in such a case from bringing a fresh suit ....