A suit is not barred by res judicata if the previous suit involving the same matter was dismissed as withdrawn and not after a final decision on merits.

V. P. Gupta, J.—Munshi Ram respondent No. 1 (hereinafter the plaintiff) filed a suit for declaration to the effect that he is the owner in possession of the land measuring 1 kanal and 17 marlas comprising khasra No. 50 of Tika Upahu Mauza Ladwara Tehsil Kangra, as detailed in the plaint (hereinafter called the suit land) with trees including an anjan tree situate in the suit land with a permanent injunction against Salo petitioner (hereinafter defendant No. 1) and respondents No. 2 to 5 (hereinafter defendants Nos. 2 to 5) to the effect that the defendants should not interfere with the plaintiffs rights in any manner whatsoever and should not cut or remove the trees from the suit land.

2. The plaintiff alleges that he is the owner of the suit land along with the trees by way of gift and that the defendants have no concern with the land and the trees. It is further alleged that the defendants are threatening to interfere with the plaintiffs rights and are also trying to cut or remove the trees forcibly from the suit land. The defendants inspire of the repeated requests are not stooping from their illegal activities of interference and the plaintiff is compelled to file the present suit. This suit was filed in the Court of Sub Judge Kangra on 14-8-1972. 3 Notices of the suit were issued to the defendants and the defendants contested the plaintiffs suit.

4. Defendant No. 1, in his written statement denied the plaintiffs claim.

5. It may be mentioned that another Civil Suit No. 311 of 1967 (Santoo v. Chuhroo, Sali and Fran poo) was filed by Santoo S/o Saudagar against Chuhroo, Sali and Partapoo sons of Lachhman on 6-9-1967 in the Court of Sub Judge Kangra regarding the land measuring 2 kanals 9 marlas comprising khasra Nos, 50, 51 aid 59 of Tika Upahu Mauza Ladwara, Tehsil Kangra and was dismissed as withdrawn with liberty to file a fresh suit on the same cause Kangra on 10-7-1972. The Order of the Sub Judge of action by the Sub Judge in Civil Suit No. 311 of 1967 was passed for the reason that the learned counsel for Santoo wanted to withdraw the case with permission to file a fresh suit on the same cause of action. Sali S/o Lachhman (defendant in Civil Suit No. 311 of 1967) was not satisfied with the order of the dismissal of the suit and he filed a revision petition (C. R No. 46 of 1973) in this Court challenging the order of the Sub-Judge dated 10-7-1972. A learned Single Judge of this Court vide his order dated 2-4-1974 accepted the revision petition and modified the order dated 10-7-1972 passed by the Sub Judge Kangra. He dismissed the plaintiffs Suit with costs after holding that the Sub Judge had acted with material irregularity in the exercise of his jurisdiction.

6. After the order of the High Court passed in Civil Revision No. 46 of 1973 on 2-4-1974, an application under Order VI Rule 17 C. P. C. was filed by Sali in August 1974 in the present suit praying that he may be allowed to amend the written statement by raising preliminary objection with respect to res judicata. This application was allowed vide Order dated 3-9-1974 passed by the Sub Judge Kangra. As a consequence an amended written statement was filed by Sali defendant No. 1 on 25-9-1974. Replication to the written statement was also filed on 28-10-1974.

7. On the pleadings of the parties, the following issues were framed on 20-6-1975 ;-

1. Whether the trees in question situate in Khasra No. 50 are owned and possessed by the plaintiff ?

2. Whether the suit is barred on the principles of res judicata ?

3. Relief. Issue No. 2 with respect to res judicata was treated as a preliminary issue and the parties were allowed to lead evidence on this issue.

8. After hearing the arguments the Sub Judge Kangra vide his order dated 8-3-1978 decided Issue No 2 with respect to res judicata against the defendants and held that the present suit was not barred on the principles of res judicata.

9. Dissatisfied with this order of the Sub Judge, Sali defendant has filed the present