Withdrawal of a suit without permission bars the institution of a fresh suit on the same cause of action.

J U D G M E N T

I.A. 11817/2023 (of defendant seeking dismissal of plaint)

1. Vide the present application, the defendant/ applicant seeks rejection of the plaint under Order VII rule 11 of the Civil Procedure Code, 1908 [hereinafter referred to as ‘ CPC ’] read with Section 12 CPC read with Order XXIII rule 1 (4) CPC and in the alternative reject the plaint under Order VII rule 11 read with Section 10 CPC .

2. Succinctly put, the defendant instituted CS(COMM.) 315/2019 entitled ‘VIP Pharmaceuticals Pvt. Ltd. vs. Rhydburg Pramaceuticals Ltd.’ [hereinafter referred to as ‘Counter Claim’] against the plaintiff before the Rohini District Courts, Delhi [hereinafter called “District Court”]. Upon being served, the plaintiff herein filed its written statement and Counter Claim on 16.08.2019. After contesting the proceedings therein for more than three years, the plaintiff on 19.12.2022 withdrew its Counter Claim. The order of withdrawal of Counter Claim dated

19.12.2022 passed by the learned District Court is as under:-

“....Present: Sh. V.K. Puri, Learned Counsel for the Plaintiff/ Counter Claimant.

Sh. Shreyansh Dassani, Learned Counsel for the Defendant.

Learned Counsel for the Plaintiff/ Counter Claimant that the Plaintiff does not wish to pursue this suit any further and thus, seeks permission to withdraw the same. His statement has been recorded separately in this regard.

In view of the statement of Learned Counsel for the Plaintiff/

Counter Claimant, the instant Suit/ Counter Claim is hereby dismissed as withdrawn.”

[Emphasis supplied]

3. Despite that, after a lapse of more than two months, on 27.02.2023 the plaintiff instituted the present suit and later on after more than five months, on 27.04.2023, filed an application seeking modification of order of withdrawal of Counter Claim dated 19.12.2022 to the effect that the same was dismissed with liberty to file a new case. The said application was dismissed vide order dated 01.03.2024 passed by the learned District Court as under:-

“......Present: Sh. Varshesh Khurana, Ld. Counsel for Applicant Arguments on the application u/s 151 CPC for recalling order dated 19.12.2022 passed by my Ld. Predecessor heard and gone through the record.

By way of this application, the applicant wants that the order may be modified to the effect that the suit was dismissed with liberty to file a new case. I have gone through the Statement of Mr. V. K. Puri, Ld. Counsel for Applicant/ Plaintiff recorded on 19.12.2022 and there is no mention of any such liberty in his statement on the basis of which the suit was dismissed as withdrawn. This application appears to have no substance or basis. The application is, therefore, dismissed.”

[Emphasis supplied]

4. In the wake of the above, now the present application is listed before this Court for hearing, wherein it is the case of the defendant that the Counter Claim filed by the plaintiff before the District Court and the present suit are inter se the same parties and are involving the same nature of disputes, i.e. involving the very same cause(s) of action and seeking the same reliefs as also that the plaintiff had willingly withdrawn the Counter Claim without seeking any prior permission of the learned District Court to institute the present suit, it deserves dismissal under Order VII rule 11 CPC in view of the provisions contained in Section 12 CPC read with Order XXIII rule 1(4) CPC , especially in view of the pronouncements of the Hon’ble Supreme Court in Pramod Kumar vs. Zalak Singh (2019) 6 SCC 621 , Bakhtawar Singh & Anr. vs. Sada Kaur & Anr. (1996) 11 SCC 167, K.S. Bhoopathy & Ors. vs. Kokila & Ors. (2000) 5 SCC 458 , V. Rajendran & Anr. vs. Annasamy Pandian (dead) through Legal Representatives Karthyayani Natchiar (2017) 5 SCC 63 and Just Spray Marketing Private Limited & Anr. vs. Devendra Kumar Sachdeva trading as M/s Asian Agencies 2023:DHC:3764.

5. Additionally, learned counsel for defendant also submits that since the present suit is involving issues