1970 (4) TMI 168

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.... and for partition and possession of his share in the family properties. Prem Sukh denied the adoption pleaded by Dr. Madan Lal. On the other hand he alleged that Vallabh Das was his adopted son. In view of that allegation, Vallabh Das was added as a supplemental defendant in that suit. No relief was claimed against him. During the pendency of that suit Prem Sukh died. Thereafter Dr. Madan Lal moved the court to withdraw the suit. He was permitted to withdraw the same with liberty to file a fresh suit on the same cause of action on condition that he pays the defendants' costs of that suit before instituting a fresh suit. Thereafter Parvatibai bequeathed her properties to Dr. Madan Lal and died soon after. The suit from which this appeal....

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....as well as by the High Court. They have come to the conclusion that Dr. Madan Lal was not a married man on that date and that he was married subsequently. Here again there is no good ground for us to interfere with the finding of fact reached by those courts. 4. The only contention that was seriously pressed before us on behalf of the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the court in the earlier suit namely the payment of defendants' costs by the plaintiff before bringing a fresh suit on the same cause of action had not been complied with. We do not think that this contention is well founded. 5. Rule 1, Order 23, CPC empowers the courts to permit a plaintiff to withdraw fro....

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....ossession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent even which conferred certain rights on him. Mere identity of some of the iss....