The main legal point established in the judgment is the interpretation and application of the provisions of O.23, C.P.C regarding withdrawal of suits and the requirement for specific permission to institute a fresh suit based on the same cause of action.

ORDER :- The sixth additional defendant in O.S. 300 of 1983 before the Sub Court, Ernakulam, a suit instituted by the respondents for the following reliefs, is the revision petitioner:

(a) declaring that the 1st plaintiff is the Trustee of the 2nd plaintiff organisation and is the Director, Superior and Rector of the institutions in the plaint schedule property and to hold and possess the plaint scheduled property as such and to live in the building in this property and carry on the religious and charitable functions in the institutions in this property, in accordance with the bye-laws and memorandum of associations relating to the same.

(b) Granting a decree of permanent injunction restraining the defendants from interfering in any way with the 1st plaintiff's rights stated above and from trespassing into the plaint scheduled property and the buildings therein.

(c) Granting a decree for all the costs of the plaintiff in connection with the suit from the defendants".

The defendants pleaded in their written statements and counter-affidavits to the following effect :-

"The suit itself is not maintainable since the first petitioner plaintiff had filed an earlier suit O.S.598 of 1982, before this Hon'ble Court and he had withdrawn the suit by his petition dt.2-1-1983. This Hon'ble Court dismissed the suit O.S.No. 598 of 1982. In accordance with O.23, the plaintiff who withdraws the suit has to be given specific liberty to institute a fresh suit in respect of the subject matter of such suit or a part of the claim. In allowing withdrawal of O.S.No. 598 of 1982 this Hon'ble Court had not given any such specific permission to institute a fresh suit and the subject matter of the fresh suit is identical with the earlier suit and reliefs claimed are also identical. Hence the plaintiff has no right to institute a fresh suit. On this ground alone the fresh suit O.S.No. 300 of 1983 has to be rejected."

2. On these pleadings the following issue was framed :

"Is the suit hit by the provisions of O.23, C.P.C, on account of withdrawal of earlier suit i.e. O.S.598/82"?

The trial Court has answered the issue against the petitioner and hence the revision by him.

3. From the statements in the plaint, it is clear that the plaintiffs have not set up any independent right over the property in question. They concede that the properties belong to the trust of which the first plaintiff is a trustee.

4. That the earlier suit, O.S.598/ 82 was filed by the first plaintiff in the present suit in his capacity as a trustee is clear from the pleadings in the said suit. A reference in this connection to para 10 of the plaint as also the prayers is relevant. It reads :-

"The 1st plaintiff constituted the Trust with the objects aforesaid among others and established the Mar Thoma Bhavan and expanded the same with voluntary contributions from abroad and supplemented from resources he could command locally also. The 1st plaintiff himself became the Trustee and hold the properties which are described in the plaint schedule herein and also the institutions established there . . . . . . . . . . The plaintiffs therefore prays that this Hon'ble Court may be pleased to summon the defendants and grant the decree in the following terms:-

(a) granting a decree of permanent injunction restraining the defendants from interfering in any manner with the function of the 1st plaintiff as Director, Superior, Trustee, Rector and Provinces and also of the day to day working of the Second Plaintiff Society by the 1st plaintiff and with the 1st plaintiff's possession and peaceful enjoyment of the plaint scheduled properties and restraining the defendants from entering upon the plaint schedule properties and from doing any act connected with the institutions established in the plaint schedule properties and from committing any waste therein.

(b) to award the cost of this suit to the plaintiffs;

(c) and such other reliefs as the plaintiffs pray for and this Hon'ble Court deem fit to grant".

The earlier

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