A plaintiff is precluded from filing a fresh suit on the same cause of action without seeking permission as per Order 23 Rule 4 of the Code of Civil Procedure.

ANIL KSHETARPAL, J.

1. Defendants-appellants are in the regular second appeal against the concurrent findings of fact arrived at by the courts below.

2. In the considered opinion of this court, question which needs determination are:-

(i) Whether a plaintiff who has filed a previous suit which was withdrawn without seeking liberty to file a fresh one can be permitted to file a subsequent suit on the same cause of action?

(ii) Whether a non party to the sale deed is bound by the description of the properties situated on four sides?

3. Plaintiff claims that he had purchased the property in dispute from one Sh. Mohan Lal vide sale deed dated 20.06.1972. He has pleaded that in the lay out plan attached to the aforesaid sale deed on the North side, a street was shown and the defendants-appellants have encroached upon the same by constructing a wall.

4. It is not in dispute that the plaintiff previously instituted a suit with respect to same property claiming that the property belongs to him, on 12.08.1987. The suit was instituted by the plaintiff against father of the defendants. In the aforesaid suit, plaintiff claimed that he had left the property in dispute from his own property for his own use and the defendants have no right, title or interest in the property. It was further claimed that the defendants interfered in his possession. Copy of the plaint is Ex.DW4/A on the file. Along with the aforesaid suit, plaintiff also filed a lay out plan which is Ex.DW2/B on the record. The lay out plan now filed and the lay out plan filed in the earlier filed are same. The aforesaid suit was withdrawn by the plaintiff vide his statement dated 17.10.1988 on the ground that there is defect in the layout plan attached. No permission was sought from the court to file a fresh suit on the same cause of action.

5. Plaintiff thereafter filed the present suit for permanent and mandatory injunction on 12.11.2002. Plaintiff pleaded that a wall has been constructed by the defendants when he was away to Chandigarh.

6. Defendants contested the suit.

7. Both the courts on appreciation of the evidence available on record have decreed the suit.

8. Now the stage is set for considering the question of law.

QUESTION No.(i):

Whether a plaintiff who has filed a previous suit and had withdrawn the aforesaid suit without seeking liberty to file a fresh one can be permitted to file subsequent suit on same cause of action?

Under Order 23 Rule 4 of the Code of Civil Procedure, the plaintiff is precluded from filing fresh suit in respect of such subject matter or such part of the claim. Order 23 Rule 4 of the Code of Civil Procedure is extracted as under:-

“[1. Withdrawal of suit or abandonment of part of claim.-

(1) XX XX XX.

(2) XX XX XX.

(3) XX XX XX

(4) Where the plaintiff-

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) XX XX XX”

9. In the present case, the subject matter of the earlier suit and the present suit is same.

10. Learned counsel for the respondent has submitted that the words “subject matter” is to be read in the context of cause of action and not in the context of the property involved in the suit. He submitted that in the present case, cause of action which accrued to the plaintiff was fresh one.

11. This court has considered the submissions.

12. In the previous suit, the plaintiff was claiming the property in dispute to be his own property which he had left for his own use. Now the plaintiff claims that it is a part of street. Property remains the same. Significant words used in Order 23 Rule 4(a) of the Code of Civil Procedure are “such subject matter or such part of the claim”. Learned counsel for the respondent has relied upon a judgment passed by a Co-ordinate Bench in the case of