Withdrawal of a suit without seeking permission to file a fresh one precludes the plaintiff from filing a fresh suit on the same subject matter, as per Order 23 CPC.

JUDGMENT

Rakesh Kumar Garg, J.

This is plaintiffs second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the respondent was accepted and the judgment and decree of the trial Court was set aside and suit of the plaintiff for possession of the property in dispute was ordered to be dismissed.

2. The appellant filed a suit for possession with consequential relief of permanent injunction against the respondents on the averments that he was owner of the suit property on the basis of a registered sale deed dated 10.7.1978 from its original owner and was also put into possession of the vacant plot at the time of execution and registration of the sale deed which was being used as Bara by him. It was further averred that the respondents taking undue advantage of the absence of the appellant encroached upon the plot in question. It was further contended that the appellant had filed a suit for possession against the respondents which was withdrawn by him as the respondents had handed over the possession to the appellant but subsequently, the respondents again encroached upon the plot in question. Thus, the suit for possession of the suit property was filed.

3. Upon notice, the respondents contested the suit raising various preliminary objections including the one that the suit was not maintainable in view of the bar under the provisions of Order 23 CPC inasmuch as the appellant had earlier also filed a suit which was withdrawn by him on 12.1.1999 without seeking permission of the Court to file a fresh suit on the same cause of action. On merits, the ownership of the appellant over the plot in question was denied. The sale deed relied upon by the appellant was stated to be a sham transaction. As per the plea of the respondents, the appellant was never in possession of the plot and they (respondents) were in possession of the plot for the last many years. Remaining averments of the plaint were denied and prayer for dismissal of the suit was made.

4. The parties led oral as well as documentary evidence in support of their respective claim and after hearing learned Counsel for the parties, the trial Court decreed the suit and concluded that the appellant had proved his ownership over the plot in question. It was also held that the suit was not barred under Order 23 CPC.

5. Aggrieved by the aforesaid judgment and decree of the trial Court, the respondents filed an appeal which was accepted by the Lower Appellate Court holding that the appellant had failed to prove the sale deed on the basis of which he was claiming the ownership of the plot in dispute as he had placed on record only an attested copy of the sale deed Ex.P-1 and had not led any evidence to prove the same in accordance with law. The Lower Appellate Court also held that the present suit filed by the appellant was barred under the provisions of Section 23 of the CPC.

6. Still not satisfied, the appellant has filed the present appeal.

7. I have heard learned Counsel for the parties.

8. Undisputedly, the appellant had tendered into evidence an attested copy of the sale deed dated 10.7.1978 on the basis of which he is claiming ownership of the property in dispute. No witness to prove the sale deed was produced. It is also not in dispute that before tendering into evidence an attested copy of the sale deed dated 10.7.1978, no permission of the Court was sought for proving the aforesaid sale deed by way of secondary evidence. Simply because the document was exhibited, its mode of proof cannot be dispensed with and the same cannot be read into evidence in favour of the appellant as the same has not been legally proved.

9. It is also not in dispute that in the earlier suit, the appellant stated that he does not want to pursue the suit and withdrew the same without liberty to file fresh one. Order 23 CPC provides that where the plaintiff withdraws from a suit without seeking permission of the court to file a fresh suit on the same cause of action, the