SONAL RAVINDRA MAHADWARVERSUSNAMDEV AMBADAS RATHOD & Ors. v. Mr. R

It was alsomentioned that the suit filed by the plaintiffs was found to be a defective oneand hence, it was necessary for the plaintiffs to withdraw the present suit.v.The Trial Court observed these facts and permitted the plaintiffs towithdraw the suit by imposing costs of Rs.300/- and setting the plaintiffs at ( 3 ) 910 WP 13565 OF 2024liberty to file a fresh suit.vi. As against this, the petitioner is before this Court under Article 227 ofthe Constitution of India. Mr. Naiknaware, learned advocate for the Petitionersubmits that a fresh suit is not permissible on the same cause of action. Hewould further submit that the Trial Court ought to have refrained fromgranting such liberty to the plaintiffs, which would go beyond thepermissibility of law. He would submit that it is trite law that a fresh suit onthe same cause of action is forbidden. Thus, he submits that the petition beallowed and the order be set aside.vii Mr.

Shinde, learned Advocate for respondent Nos.1 and 2 would submitthat the order was passed in the presence of the petitioner. He would submitthat the application was a bona fide one, and upon realizing that the suit wasfound to be defective the same was sought to be withdrawn with liberty to filea fresh suit. He thus prays for rejection of the writ petition.4. Consideration:i.I have heard both the learned Advocates for the respective parties forsome time. Apparently, the application was filed after rejection of thetemporary injunction application. There is nothing placed before me toindicate that the said rejection order was set aside by the Appellate Authority. ( 4 ) 910 WP 13565 OF 2024ii. It is also true that while the proceedings for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure were pending, thispursis/application was moved by the plaintiffs. Although the plaintiffs havesought to withdraw the suit with liberty to file a fresh suit on the same causeof action, the application was absolutely at the risk of the plaintiffs.

Merementioning that they would file a fresh suit on the same cause of action as thesuit was found to be defective will not override the position of law.iii. The apprehension of Mr. Naiknaware, learned Advocate for thepetitioner that ‘grant of liberty takes exception to the settled law and legalizesa further suit of the plaintiffs on the same cause of action’ is not correct. Although liberty is granted by the Trial Court to file a fresh suit, the said suitshall always be subject to the existing law including the principles of resjudicata and Order XXIII of the Civil Procedure Code. True that Order XXIII ofthe Code mentions about a leave, however such leave shall always be subjectto the law. The Trial court has not granted specific leave to file fresh suit onthe same cause of action. iv. It is apprised to the court that the respondent/plaintiff has already filedanother suit. It is open for the petitioner to file a written statement, if notalready filed, and raise a dispute the maintainability of such suit.

It is even ( 5 ) 910 WP 13565 OF 2024open for the Petitioner to take recourse to Order VII of the Civil ProcedureCode to demonstrate non maintainability of the suit. v.The Trial Court is bound to adjudicate upon the maintainability of suchsuit on the touchstone of the provisions of law and not merely on the libertyexpressed by the Court in the impugned order. 5. With these observations, the writ Petition disposed. Rule is madeaccordingly.

[AJIT B. KADETHANKAR, J.]PRW