A second suit brought during the pendency of a previously instituted suit does not become barred by the provisions of Order XXIII Rule 1, Civil P. C., on the withdrawal or dismissal of the first suit. However, such a suit may be dismissed if it is an abuse of the process of the court.

Kapur, J.

1. This is a plaintiffs second appeal against a judgment and decree of the Additional District Judge, Hoshiarpur, affirming a decree of the trial Court holding that the plaintiff could not continue his second suit because of the dismissal of the first.

2. In order to make clear how the question arose it is necessary to describe the litigation which has given rise to this appeal. On the 22nd of June, 1946, Harnam Singh plaintiff brought a suit for declaration that he was a lawfully adopted son of Hira Singh as he was adopted by Hira singhs widow Diali who had obtained her husbands permission during his lifetime. After the defendants had put in their written statement an issue as to adoption was framed on the nth of December, 1946, and the case was adjourned to the 4th of March, 1947, for evidence.

3. On the 11th of January, 1947, Harnam Singh brought another suit against the same defendants on practically the same allegations.

4. On the 22nd of February, 1947, the plaintiff applied for withdrawing the first suit stating that he did not want to proceed with that suit. On the same day the plaintiffs Pleader made the following statement:

"The suit be dismissed and the costs of the defendants be ordered to be paid by the plaintiff."

On the 4th of March, 1947, the Court passed an order which is as follows:

"Plaintiff absent. Rana Feroze-ud-Din Vakil is present for defendants Nos. 1 to 3 and 5 to 8. In accordance with the application of the plaintiff and the statement of the plaintiffs counsel dated the 22nd of February, 1947, the suit of the plaintiff be dismissed with costs..........."

The defendants pleaded that the second suit was not maintainable because of the dismissal of the first and both the Courts below held that the suit was not maintainable.

5 in appeal counsel for the appellant has submitted that a second suit brought during the pendency of the first suit cannot be dismissed if the first suit is dismissed under the circumstances such as these. He contended that there are only four provisions in the Civil P. C. which bar a second suit:

(i) Section 10 which provides for stay;

(ii) Section 11 which bars a suit because of res judicata;

(iii) Provisions of Order IX, and (iv) Order XXIII Rule 1

Obviously Section 10 does not apply to the facts of the case. Section 11 is applicable if the matter directly and substantially in issue has been heard and finally decided. Order IX would apply where one of the parties is not present and the suit is dismissed in default or decreed ex parts and Order XXIII Rule 1 where one suit is withdrawn without permission to bring a fresh suit.

6. Mr. Pandit relied on Mangilal V/s. Radha Mohan, AIR (17) 1930 Lah 599, where it was held by a Division Bench that under Order XXIII, Rule 1 a second suit instituted before the first suit is abandoned or dismissed is not affected by such withdrawal because Order XXIII Rule 1 applies only to suits instituted after the withdrawal or abandonment of previous suits. Reference in this case was made to a previous judgment of the Lahore High Court in Ram Mal V/s. Upendra Datt. AIR (15) 1928 Lah 710.

7. in reply Mr. Doabia relied on another judgment of the Lahore High Court in Amir Dinshahab Din V/s. Shiv Dev Singh Jhanda Singh, AIR (34) 1947 Lah 102, where two suits had been brought on the same cause of action against the defendants by the same plaintiffs but on different dates. One suit was dismissed for default and it was held that the second suit was barred because (1) no man should be allowed to sue on the same cause of action twice as it offends against the well-known maxim that no man shall be twice vexed with one and the same cause of action and (2) that the institution of and trial of the second suit amounted to an abuse of the process of the Court. He laid particular emphasis on the observations of Achhru Ram, J., at p. 104:

"A plaintiff, on finding at the conclusion of the trial, that the evidence has all gone against him and that this s