The recurring cause of action for partition and separate possession allows for the maintainability of a subsequent suit even after unconditionally withdrawing an earlier suit for similar relief.

JUDGMENT :

MANISH PITALE, J.

1. By this revision application, the applicant, who is the original defendant No. 2, has approached this Court challenging order dated 24.09.2021, passed by the Court of XIth Joint Civil Senior Division, Amravati, whereby an application filed by the applicant for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) was rejected.

2. The case of the applicant before the Court below was that the suit filed by respondent No. 1 seeking declaration, injunction, partition and separate possession did not deserve consideration by the Court below, for the reason that an earlier suit for identical relief filed by the very same party was unconditionally withdrawn and disposed of as such. It was submitted that only one property was subject matter of the earlier suit, but in the subsequent suit other properties were also included. It was submitted that once the respondent No. 1 unconditionally withdrew the earlier suit and abandoned his claim, he could not be permitted to pursue the subsequent suit. This contention was obviously raised on the basis of Order 23 Rule 1(4) of the CPC.

3. The respondent no. 1 opposed the said application. The Court below took into consideration rival submissions and rejected the said application, primarily on the basis that the earlier suit was dealing with only one property, while the subsequent suit dealt with four properties and therefore, the subject matters of the suits were different.

4. Mr. Akshaya Sudame, learned counsel appearing for the applicant referred to Order 23 Rule 1(4) of the CPC and submitted that in the present case, admittedly the earlier suit was unconditionally withdrawn, as evident from the pursis placed on record of the said suit and the order dated 24.11.2014, passed in the earlier suit bearing Special Civil Suit No. 84/2013. The learned counsel then invited attention of this Court to the subsequent suit bearing Special Civil Suit No. 167/2016 filed by the respondent No. 1 and he contended that, other than including three more properties as subject matter of the suit, certain pleadings were added as regards the circumstances in which the earlier suit was withdrawn and virtually the same relief was sought on behalf of respondent No. 1. It was submitted that by operation of Order 23 Rule 1(4) of the CPC, such a subsequent suit, on the face of it, could not be entertained and that the plaint ought to have been rejected. The learned counsel placed reliance on judgments of the Hon’ble Supreme Court in the case of Vallabh Das Vs. Dr. Madan Lal and Ors. 1970 (1) SCC 761 and Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior and Ors. (1987) 1 SCC 5.

5. When this application was argued on the last occasion, the learned counsel appearing for the contesting respondent No. 1 relied upon the judgment of this Court in the case of Laxman Mahadeo Nikose Vs. Narayan Mahadeo Nikose and Ors. 2014 (5) Mh.L.J. 772, to contend that the subsequent suit was maintainable, as the suit was for partition and that in such cases, there can certainly be recurring cause of action, even if an earlier suit is either withdrawn or disposed of without consideration on merits.

6. In response thereto, the learned counsel appearing for the applicant submitted that an earlier judgment in the case of Harishchandra Vithoba Narawade and Ors. Vs. Vatsalabai Narayan Shinde 2004 (4) Mh.L.J. 897, was not brought to the notice of this Court when the case of Laxmanrao Mahadeo Nikose (supra) was decided. By placing reliance on the said judgment, it was contended that although the successor-in-title of the respondent No. 1 may institute a subsequent suit for such reliefs, in view of the unconditional withdrawal of the earlier suit, respondent No. 1 was barred from instituting the subsequent suit. Reliance was also placed on recent judgment of this Court in the case of Devidas @ Shekhar S/o Mahadeo Deokar and Ors. Vs. Vasant S/o Ganesh Deokar and Ors. 2022 (3) A