Abandonment of an earlier suit without obtaining necessary permission under Order 23 Rule 1(4) CPC precludes the plaintiff from maintaining a subsequent suit on the same cause of action.

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 31.01.2008 passed in A.S.No.50 of 2004 on the file of the Additional District and Sessions Judge cum Fast Track Court No. IV, Poonamallee , confirming the judgment and decree dated 16.08.2004 passed in O.S.No.301 of 2004 on the file of the District Munsif Court, Poonamallee).

1. Challenge in this second appeal made to the judgment and decree dated 31.01.2008 passed in A.S.No.50 of 2004 on the file of the Additional District cum Sessions Judge, Fast Track Court No. IV, Poonamallee, confirming the judgment and decree dated 16.08.2004 passed in O.S.No.301 of 2004 on the file of the District Munsif Court, Poonamallee.

2. For the sake of convenience, the parties are referred to as per the rankings in the trial court. The defendant in O.S.No.301 of 2004 is the appellant in this second appeal.

3. Suit for declaration, possession and future mense profits.

4. The case of the plaintiff in brief is that the suit property described in the plaint schedule was purchased by the plaintiff from one Moolchand Dugar for a valid consideration by way of a sale deed dated 25.01.1985 and since then, it is she, who has been in the possession and enjoyment of the suit property and prior to the same, her vendor had been in the possession and enjoyment of the suit property from the year 1967 onwards and when the plaintiff was away from the suit property, the defendant with the help of local politicians, attempted to trespass in to the suit property on 06.07.1987 and also endeavored to put up some unauthorized and illegal construction thereon, however, the abovesaid attempts of the defendant had been resisted by the plaintiff and hence the plaintiff was forced to file the suit in O.S.No.1239 of 1987 on the file of the District Munsif Court, Poonamallee against the defendant for the relief of permanent injunction and obtained an exparte order of injunction in I.A.No.1637 of 1987 in O.S.No.1239 of 1987 and the defendant filed a caveat against the plaintiff on 24.04.1992 and intruded and trespassed into the suit property with the help of his henchmen and adamantly constructed the building in the suit property and the plaintiff filed the petition for the appointment of an Advocate Commissioner to inspect the suit property with the help of Taluk Surveyor and one Mr.P.R.S.Bharanivel, Advocate was appointed as the Advocate Commissioner and he had inspected the suit property on 18.06.1994 with the help of Taluk Surveyor and found out the defendant's encroachment and filed his report which would go to show that the defendant had trespassed and put up the construction in the suit property. The defendant has no right, title or interest over the suit property and hence the plaintiff is necessitated to file the present suit for declaration of her title to the suit property and for the consequential relief of vacant possession of the suit property, after the removal of the unauthorized and illegal superstructure put up by the defendant, the plaintiff issued a legal notice dated 16.10.1995 to the defendant and the abovesaid notice had been returned as “not claimed”. The defendant is in the unlawful possession and enjoyment of the suit property and he is liable to pay Rs.100/- per month till the delivery of the vacant possession and enjoyment of the suit property and hence according to the plaintiff he has been necessitated to institute the suit against the defendant for appropriate reliefs.

5. The defendant resisted the plaintiff's suit contending that the plaintiff's suit is not maintainable either in law or on facts and after denying the case projected by the plaintiff in the plaint, according to the defendant, the appointment of the Advocate Commissioner in the earlier suit laid by the plaintiff in O.S.No.1239 of 1987 is true, however the report filed by the Advocate Commissioner is incorrect as the Surveyor who had assisted him had not properly identified and measu