A trial court cannot determine the question of bar to a suit under Order 23 Rule 1(4) of the CPC without framing a specific issue, providing an opportunity to the plaintiff to meet the controversy, and allowing the plaintiff to adduce evidence on the plea.

JUDGEMENT :- This appeal arises out of the judgement and decree dated 17-8-1979 passed, by Shri N.C. Barna, Assistant District Judge, Barpeta in Title Suit No.4 of 1974 dismissing the plaintiffs suit on the grounds, (a) that in respect of the same causes of action the plaintiff had instituted Title Suit No.7 of 1973 but he withdrew from the suit under O.23 of the Civil P.C. for short the Code, without obtaining liberty to institute a fresh suit in respect of the subject matter of the suit; (b) the plaintiff did not make any averment in his plaint that he had withdrawn the suit with the permission of the Court with liberty to institute a subsequent suit and, (c) the plaintiff did not pay the cost of Rs. 50/- awarded by the Court while permitting the plaintiff to withdraw from Title Suit No.7 of 1973, a condition precedent for institution of the subsequent suit .

2. Order 6 deals with "pleadings" generally. The term "pleadings" means formal allegations by the parties of their respective claims and defences, for the judgement of the Court. The term "pleadings" has a technique and well defined meaning. Pleadinigs are written allegations of what is affirmed on the one side or denied on the other disclosing to the Court having jurisdiction to try the cause, the real matter in dispute between the parties. A plaint must contain "material facts" as to the cause of action and nothing more. No evidence need be stated. It is indubitable that in the instant case the defendants, in their written statements (pleadings), did not take up the plea that the subsequently instituted suit was not maintainable in view of the bar imposed by O.23, R.1(4) of "the Code", therefore, no specific issue was framed as to the alleged violation of O.23, R.1 of "the Code". It is well known the pleadings of the adversary in a civil action are meant for letting forth the controversies to enable the other side to meet the controversies. In the instant case the defendants could have taken up the plea of non-maintainability of the suit in view of the bar under O.23, R.1(4) of the Code. However, no such plea had been taken by the defendants nor any issue was framed apart from a general omnibus issue reading:

"Whether there is any cause of action in Ute suit ?"

3. Consequently, the plaintiff had no opportunity to meet the controversy which was raised for the first time during the argument stage after the evidence of the parties had been recorded Upon hearing oral arguments the learned Assistant District Judge held that the suit was not maintainable in view of the bar under O.23, R.1 of the Code. The issue framed was to the existence of cause of action to sue. The question of want of cause of action cannot be equated with the question of bar of institution of a fresh suit in violation of O.23, R.1 of the Code. As such, the learned Judge had no jurisdiction vested in him by law to determine the question as to whether the suit was barred or not maintainable in view of the prohibition contained in O.23, R.1 of the Code, without framing a specific issue on the point, without affording opportunity to the plaintiff to meet the specific plea and without giving the plaintiff opportunity to adduce evidence on the plea. The learned Judge, could have called upon the defendant to amend his pleading to take up the plea, frame issue and decide the question whether the subsequent suit, was barred under O.23, R.1 of "the Code". He did neither. For the reasons we are constrained to hold that the learned Judge had, no jurisdiction to enter into the controversy whether the suit was barred under O.23,1 R.1 of the Code.

4. Be that as it may, the plaintiff, by way of abundant caution, proved the order dated 4-1-1974 jn Title Suit No.7 of 1973 passed by the Assistant District Judge, Barpeta, whereby the learned Judge upon hearing the parties allowed the plaintiff to withdraw from the suit (T.S.7/73) under O.23, R.1(3) of the Code with liberty to institute a fresh suit in respect of t