Decided on February 05,1973

Suna Bewa And Ors. Appellant
Kanduru Sahu Respondents


S.Acharya, J. - (1.) NOBODY appears on behalf of the Respondent in spite of repeated calls.
(2.) THE Appellants in this case are the legal representatives of the Plaintiff who instituted the suit. The Plaintiffs now on record have preferred this second appeal against the decision of the Subordinate Judge, Keonjhar in Title Appeal No. 16 of 1969 -I Anandapur in Title Suit No. 65 of 1966 -I. The Plaintiff's suit was for a declaration of title and for confirmation of possession in respect of 18 decimals of land out of plot No. 121. It is not necessary for me to state in detail the averments made by the parties in their pleadings, for, I am satisfied, on a perusal of the impugned judgment and on hearing the learned Counsel for the Appellants, that this appeal fails of the legal ground stated below: The appellate Court in this case finds that the Plaintiff's suit is not maintainable as it is hit by the provisions of Sub -rule (3) of Rule 1 of Order 23, Code of Civil Procedure. It is an undisputed fact that the original Plaintiff who filed this suit had, on an earlier occasion, filed Title Suit No. 160 of 1964 for a declaration of his title and for confirmation of possession in respect of the selfsame 13 decimals of land. Thus the subject -matter of that suit was exactly the same as that of the present suit. The Plaintiff withdrew that suit. The Defendant in the present suit was a Defendant in that suit. In the appellate Court certified copies of the order No. 23 dated 18 -7 -1966 and order No. 34 dated 24 -7 -1966 passed in Title Suit No. 160 of 1964, were filed and admitted as additional evidence in this case. The Court on a perusal of the said certified copies finds that by Order No. 23 dated 18 -7 -1966 passed in Title Suit No. 160 of 1964 by the additional Munsif, Anandapur who was legally in seisin of that suit, rejected the petition of the Plaintiff under Order 23, Rule 1, Code of Civil Procedure for withdrawal of the suit with permission to file a fresh suit. The Plaintiff later filed another petition to that effect and by Order No. 34 dated 24 -7 -1966 the said. Additional Munsif, Anandapur allowed the Plaintiff to withdraw the suit unconditionally, under Order 23, Rule 1, Code of Civil Procedure , on payment of costs to the Defendant. On a consideration of order No. 23 and order No. 34 passed in Title Smt No. 160 of 1964 by the Additional Munsif, Anandapur the Court below rightly holds that the trial Court refused permission to the Plaintiff to withdraw that suit with liberty to institute a fresh suit, as contemplated under Sub -rule (2) of Rule 1 of Order 23, Code of Civil Procedure. That being the position, the present suit, for the s me subject -matter and relief prayed for in the previous suit, is not maintainable in view of the specific provisions of Sub -rule (3) of Rule 1 of Order 23, Code of Civil Procedure which is as follows: (3) Where the Plaintiff (withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub -rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject -matter or such part of the claim. On the above view of the matter the Court below was perfectly justified in holding that the present suit filed by the Plaintiff was not maintainable. As the suit is not maintainable in law for reasons stated above this second appeal by the Plaintiffs is liable to be dismissed. Accordingly this appeal is dismissed but in the circumstances without costs of this Court. ;

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