Rajesh Bindal J. - Challenge in the present petition is to the order dated 27.11.2007, passed by the learned court below, whereby the application filed by the petitioners under Order 7 Rule 11 CPC for rejection of the plaint was dismissed.

2. Briefly, the facts are that respondent No. 1 filed a suit for mandatory injunction against the petitioners in which the petitioners filed application for rejection of plaint raising the issue regarding maintainability of the suit under Order 23 Rule 3 CPC and also that the same was time barred. The application having been rejected, the petitioners are before this Court.

3. Learned counsel for the petitioners submitted that the suit, which was filed by respondent No. 1 against the petitioners, was third in series. The same was nothing else but an abuse of process of law. It was filed just with a view to harass the petitioners. Narrating the facts, it was submitted that on 31.3.2001, respondent No. 1 filed a suit for mandatory injunction against the father of petitioner No. 1, which was dismissed as withdrawn on 22.11.2003. On the same date, a fresh suit was filed against the petitioners claiming same relief, in which application for withdrawal of suit with permission to file a fresh one was filed, which was dismissed by the learned court below on 9.2.2005. Thereafter, on the statement of counsel for respondent No.1, the suit was dismissed as withdrawn. After dismissal of the second suit as withdrawn, third suit was filed claiming the same relief. It is in this suit that the petitioners filed application under Order 7 Rule 11 CPC raising the plea that the earlier suit filed for same cause of action having been dismissed as withdrawn without any permission to file a fresh one, the subsequent suit was barred under Order 23 Rule 4 CPC. He further submitted that as is alleged in the plaint, the cause of action to file the suit arose on 19.4.2001, the suit having been filed on 13.3.2005 was clearly beyond limitation as for filing a suit for mandatory injunction, the limitation is 3 years. In view of the aforesaid factual position, the impugned order passed by the learned court below dismissing the application filed by the petitioners for rejection of plaint is not sustainable and deserves to be set aside.

4. On the other hand, learned counsel for respondent No. 1 submitted that the facts in the present case are not so simple as are sought to be projected by the petitioners. Respondent No. 1 had purchased the property by way of agreement to sell. As the father of petitioner No. 1 had placed roof of his house in common street and wall, which exclusively belonged to respondent No. 1, suit for mandatory injunction was filed against the father of petitioner No. 1 under the impression that he was owner of the property. However, when it was pointed out in the written statement filed that he was not the owner of the property, rather, the petitioners were the owners, on withdrawal of the earlier suit on 22.11.2003, a fresh suit was filed immediately against the petitioners. It was pointed out that in the first suit and the second suit as well, respondent No. 1 had claimed that the house in question where respondent No. 1 is living was owned by Bishan Singh son of Jwanda Singh. Harbans Singh Ahuja son of late Bishan Singh had entered into an agreement to sell the same with respondent No. 1 on 13.11.1990 as the property had been inherited by him. As total amount of sale consideration had been paid, possession of the house had been delivered to respondent No.1 and accordingly, she was in possession of the house as owner thereof and further that on account of failure of the vendor to get the sale deed registered in favour of respondent No. 1, a civil suit for specific performance of agreement to sell was filed. As the civil suit was decreed on 23.11.2004, application was filed for permission to withdraw the suit filed by respondent No. 1 against the father of petitioner No. 1 with permission to file