The court emphasized that the intention of the Legislature in incorporating Order 23 Rule 1 CPC was to limit parties to one round of litigation and discourage them from re-agitating the matter by filing a fresh suit on the same cause of action.

( 1 ) AGGRIEVED by the judgment and decree dated 16th september, 1985 passed by the learned Single Judge the present appeal has been filed by the appellant under section 96 of the Code of Civil Procedure. Mr. Issar learned counsel appearing for the appellant has contended that provisions of Order 23 Rule 1 CPC cannot be applied to the suits instituted after withdrawal or abandonment of previous suit and the same cannot be read so as to b. . . of suit which has already been instituted before the other suit had been abandoned or dismissed. It was contended by learned counsel for the appellant the the learned Single Judge could not have dismissed or rejected the plaint within the ambit and scope of Order 7 Rule 11 cpc and, therefore, the rejection of plaint is liable to be set aside and the suit is liable to be restored. It was contended that in the previously instituted suit the cause of action was different. The suit was a suit for mandatory injunction and declaration and the specific suit was for partition. Therefore, there were different cause of actions and the suit could not have been dismissed by the learned Single Judge. The rejection under Order 7 Rule 11 of the CPC of the suit was contrary to the provision of law as there was no scope of applying order 23 CPC and rejecting the plaint under Order 7 Rule 11 of the CPC. In support of his contention learned counsel appearing for the appellant has sited the reliance of 1987 DLT 134, 1991 Vol. 44, DLT 299, 1970 DLT 549. In support of his contention that the suit of the appellant could not have been dismissed. On the other hand learned counsel for the respondent has contended that the prayer in the previous suit for mandatory injunction and declaration and in the present suit for partition were identical. He has invited our attention to the prayer clause of in the previously instituted suit which is at page 7 of the paper book which reads as under:-

" It is, therefore, prayed that the plaintiffs be declared as owners of the half share of the property bearing Municipal No. 5458-5464 in Khasra No. 421, mesauring 150 sq. yards situated at Gali No. 71, Arya Samaj raod, Rehgarpura, Karol Bagh, New Delhi and a decree to this effect be passed with costs in favour of the plaintiff and against the defendants 1 and 2".

( 2 ) THEREAFTER what appeared was with regard to the injunction against the some tenants of the property for which we are not concerned in the present proceedings. The learned counsel for the appellant has also invited our attention to the prayer of the present suit at page 29 of the paper book which is to the following effect:-

" Hence the plaintiffs pray that a decree for partition by metes and bounds of the suit property may kindly be passed in favour of the plaintiff against the defendant and the plaintiffs share therein be separated and possession of their separated share by partition be delivered to the plaintiffs in accordance with law. "

( 3 ) IT was also contended that in view of the fact that suit was abandoned by the appellant knowingly when the suit was going to be dismissed the institution of the suit on 2nd August, 1984, the statement of the counsel for the appellant the previously instituted suit was recorded by the trial court on 3rd August, 1984 and suit was ultimately abandoned by the appellant on 6th august, 1984. It was contended before us that the provisions of Order 23 Rule 1 (4) CPC are attracted to the present case and in support of his contention learned counsel for the respondent has relied upon AIR 2002 Delhi 330 M/skishan Chand Surendra Kumar vs. Delhi School teachers Co-operative Housing Building Society Ltd.

( 4 ) WE have given our careful consideration to the arguments advanced by the learned counsel for both the parties. Appellant alongwith his two brothers, all sons of late Mangla Ram, filed Suit No. 1220/1984 claiming a decree for partition of half share of the immovable property bearing Municipal No. No. 5458-5464 wherei