A plaintiff who withdraws from a suit without permission shall be precluded from instituting any fresh suit in respect of the same subject matter, as per Order 23, Rule 1(4) of the CPC.

T. Nanda Kumar Singh, J.

1. Heard Mr. C.K.S. Baruah, learned Senior Counsel assisted by Mr. P.P. Das for the appellants/defendants and Mr. M.H. Rajbarbhuiyan, learned Counsel appearing for the respondents/plaintiffs.

2. The challenge in this second appeal is to the Judgment dated 27.3.2002 passed by the learned Civil Judge (Senior Division) No. 2, Guwahati in Title Appeal No. 43/2000 dismissing the appeal and upholding the Judgment and decree dated 9.6.2000 passed by the learned Civil Judge (Junior Division) No. 1, Guwahati in T.S. No. 7/91 decreeing the suit in favour of the plaintiffs/respondents.

3. The short facts which would be sufficient for deciding the present appeal are that the respondents/plaintiffs filed the Title Suit No. 7/91 against the present appellants/defendants for a decree of ejectment of the appellant-defendant and his men from the suit premises described in Schedule A to the plaint and also for a decree for arrear of house rent to be paid by the appellants/defendants amounting to Rs. 1440/- and Rs. 240/-, Total Rs. 1680/- on the pleaded case that the appellants/defendants are the tenants under the respondents/plaintiffs in respect of the suit premises. In Para 5 of the plaint it had been mentioned that:

Para 5. That previously there was a suit between the plaintiff and defendant No. 1 for ejectment from the house and the said suit was numbered on T.S. No. 61 of 1979 of the court of Sadar Munsiff, Guwahati. The said suit was decreed but on appeal the same was sent on remand on the point whether the arrears of the house rent paid by the defendant No. 1 is adjusted or not. After the Judgment on remand passed by the appellate court it has been noticed that the arrears of advance house rent paid by the defendant No. 1 had not been adjusted till filing of said suit. So the plaintiff withdraw the suit of the Sadar Munsiff, Guwahati with a permission to refile the suit on 25.8.88.

4. From the pleaded case of the respondents/plaintiffs in Title Suit No. 7/91, it is clear that the respondents/plaintiffs had earlier filed the suit being T.S. No. 61/79 in the Court of the learned Sadar Munsiff, Guwahati for ejectment of the appellants/defendants from the suit premises, but the said suit said was to have been withdrawn with the permission to refile the same under the order of the learned Sadar Munsiff, Guwahati dated 25.8.88 passed in Title Suit No. 61/79.

5. The said order of the learned Sadar Munsiff, Guwahati dated 25.8.88 was exhibited as Ext. 3 in the course of trial of the present Title Suit No. 7/81. It would be to and proper to quote the said order of the learned Sadar Munsiff, Guwahati dated 25.8.88. The order dated 25.8.88 reads as follows:

Advocates of the parties filed hazira and present. Petition No. 2615/87 dated 30.3.87 and 3302/87 dt. 25.4.87 filed by the plff petitioner Under Order 23 of the CPC are taken up for hearing. Mr. N. Goswami the learned advocate for the deft objecting the second para of the Petition No. 2615/87 inter alia submitted that the petition for withdrawal was filed only after the deft filed the written statement taking the pleas which is now taken and inserted by the petitioner in para 2 (two) of his Petition No. 3302/87 dt. 25.4.87. In fact this was the defence plea taken by the deft in his w/s. After that the plff came with this petition. Mr. Goswami further submits that if that part of the petition i.e. the leave to institute fresh suit is allowed then deft would be prejudiced. Analysed the record and gone through the pleadings of the parties.

In view of the submission of Mr. Goswami and analyzing the pleadings the petitions are allowed to the extent that the plff is only allowed to withdraw the suit. With this observation both petitions are disposed of.

6. From the bare perusal of the order of the learned Sadar Munsiff, Guwahati dated 25.8.88, it is crystal clear that the application filed by the respondents/plaintiffs for withdrawal of Title Suit No. 61/79 with the permission