Jayant Nath, J.

1. This is an application filed by the defendant under Order 7 Rule 11 of the Code of Civil Procedure for dismissal of the suit. The plaintiff and defendant are brother and sister. The present suit is filed for partition, declaration and permanent injunction by the plaintiff who claims to be a co-owner of property No. E-134, Preet Vihar, Near Durga Mandir, Delhi-110092.

2. It is the contention of the plaintiff that the property was owned by her late father and mother. The father of the plaintiff and defendant died on 27th January, 1992 without leaving any Will. The mother of the parties died on 9th January, 2006. Hence it is contended that the said property was joint property and the plaintiff is a co-sharer.

3. The plaintiff further states that the defendant came to the residence of the plaintiff on 20.04.2010 and asked her to sign some papers for the transfer of the said property in the name of the defendant but the plaintiff refused to sign the papers. The plaintiff further admits that she had earlier filed a suit for permanent injunction in the Court of Senior Civil Judge, Karkardooma, Delhi on 15.05.2010. It is further stated that when the defendant appeared, a new fact came into the picture when the defendant told the Court that the plaintiff had already executed a relinquishment deed in favour of the defendant on 12.08.2009 which deed, the plaintiff states, is not admitted. The plaintiff further submits that defendant has fraudulently and by misguiding her taken her signature on the said documents. Nothing further is mentioned about the earlier suit filed in the Court of Senior Civil Judge, Karkardooma Court, Delhi.

4. In view of the above averments, the defendant has filed the present application under Order VII Rule 11, CPC stating that the present suit is barred under Order II Rule 2 CPC. It is pointed out in the application that the plaintiff has previously instituted a suit in the Court of Senior Civil Judge, Karkardooma Courts, Delhi and has withdrawn the said suit after filing the present suit without taking any liberty whatsoever for filing a fresh suit.

5. Learned counsel for the defendant/applicant has submitted that the cause of action of the earlier suit and that of the present suit is identical namely the plaintiff’s seeking rights in the suit property. The counsel further submits that the first suit filed in the Karkardooma Courts was filed prior to “in time” and without withdrawing that suit, the present suit was filed in Delhi High Court. After having filed the present suit, the plaintiff is stated to have withdrawn the suit in Karkardooma Courts without seeking any liberty to file a fresh suit. Learned counsel also further submits that no leave to withdraw the case was sought from the Court under Order 23 Rule 1 CPC and hence, even otherwise, the present suit is barred under Order XXIII Rule 1 CPC.

6. Learned counsel for the defendant relies upon Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited (2013) 1 SCC 625 and Madan Lal Arora v. Shiv Kumar 2007 (95) DRJ 395 (DB) to state that in view of provisions of Order II Rule 2, CPC the present suit filed by the plaintiff before this Court is barred.

7. Learned counsel for the plaintiff on the other hand contends that when the first suit was filed, the plaintiff was not aware about the relinquishment deed dated 12.08.2009 allegedly executed by her and which is a registered document. It is stated that only in the course of proceedings before the Karkardooma Courts, on the basis of pleas raised by the defendant, it came to light that the defendant has fraudulently obtained signature of the plaintiff on the said relinquishment deed. Hence the necessity to file the present suit arose. It is further contended that the preset suit is based on a different cause of action. The learned counsel for the plaintiff relies upon Vallabh Das v. Dr. Madan Lal & Ors (1971) 1 SCR 212 and Sidramappa v. Rajashetty and Ors (19