The court clarified the application of Order 23 Rule 1(4) and Order 2 Rule 2 of the Code of Civil Procedure, emphasizing that the permission to withdraw a suit for filing a fresh suit is deemed to be with liberty to file a fresh suit under certain circumstances.

RAM CHAND GUPTA, J. - The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 22.12.2010, Annexure P8, passed by learned trial Court vide which preliminary issues were decided against the present petitioner-defendant no.4.

2. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

3. Briefly stated, the present suit was filed by respondent-plaintiff, Dr. Hemo Prabha Saikia for a decree for declaration that surrender deed dated 22.7.1997 is a forged document and was not executed by the plaintiff and that sale deed dated 7.8.1997 executed by respondent-defendant no.3 as attorney of respondent-defendant no.2 in favour of present petitioner-defendant no.5 in respect of land in dispute, which is part of the land under perpetual lease-hold rights of the present respondent-plaintiff is illegal, null, void and against the interest of the plaintiff as a lessee/pattedar of the land in dispute and that she is not bound by the said lease deed with a further prayer for a decree for recovery of possession of the suit land. It was contended that respondent-defendant no.2 executed a lease deed dated 30.3.1992 for a period of 99 years for a total consideration of Rs.30,000/-in favour of plaintiff in respect of the land in dispute and the possession was handed over to the plaintiff through her attorney. However, thereafter respondents-defendants no.1 and 2 had taken illegal possession of the same. It is further contended that fraud was also committed upon respondent-plaintiff as some lady impersonated her in connivance with respondents-defendants no.1 and 2 and deed of surrender regarding lease hold rights was got executed and thereafter sale deed was executed by defendant no.3 as attorney of defendant no.2 in favour of defendant no.4, i.e., present petitioner. She has challenged the said surrender deed and the sale deed and sought consequent relief of possession. Suit was contested by present petitioner-defendant no.4. Certain preliminary objections were taken regarding maintainability of the suit and the suit being not properly valued for the purpose of court fee and jurisdiction. The following issues were treated as preliminary issues by learned trial Court:-

“4. Whether suit is not maintainable in the present form? OPD

6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD”

4. After hearing learned counsel for the parties, learned trial Court decided issue No.4 in favour of respondent-plaintiff by holding that the suit is maintainable in present form. Regarding court fee, respondent-plaintiff was directed to affix the Court fee on the relief of possession @10% of total rent in respect of the land in dispute.

5. It has been contended by learned counsel for the petitioner that he does not want to contest the finding of learned trial Court on issue no.6 regarding court fee and hence he has restricted his argument on issue no.4. He has contended that this is the third suit filed by respondent-plaintiff and that in view of the fact that earlier two suits were got dismissed as withdrawn by respondent-plaintiff, without getting the permission from the Court to file fresh suit, she is precluded from filing the present suit in respect of the subject matter in dispute under Order 23 Rule 1(4) and under Order 2 Rule 2 of the Code of Civil Procedure (for short `the Code').

6. On the other hand it has been contended by learned counsel for the respondent-plaintiff that first suit was filed for permanent injunction only and hence, the same was on different cause of action. He further contended that second suit was for declaration without seeking relief of possession and hence, there was formal defect in the suit and hence, an application was filed for withdrawal of the suit by mentioning that another suit for declaration and recovery of possessi