JUDGMENT

MANOJ JAIN, J

1. Petitioner herein is defending a civil suit filed by his real sister. Such suit1 (hereinafter referred to as the present suit) was taken up by the learned Trial Court on 01.09.2018. The petitioner (defendant before the learned Trial Court) had moved three applications and his two such applications have been dismissed which has compelled him to file the present petition under Article

227 of the Constitution of India.

1 Civ DJ/611263/16

2. For the sake of convenience, I would be referring to the parties as per their nomenclature before the learned Trial Court and, therefore, the petitioner herein would be referred to as defendant and respondent Smt. Sant Kaur would be referred to as plaintiff.

3. The emphasis is primarily concerning dismissal of his application which he had moved under Order XXIII Rule 1 read with Order VII Rule 11 CPC.

4. According to the defendant, earlier also the plaintiff, his sister, had filed a similar suit which she had withdrawn. Though, she had sought liberty from the learned Trial Court to institute the suit afresh but since such liberty was not granted, the present suit is not maintainable and is liable to be dismissed in terms of Order XXIII Rule 1 CPC.

5. There is no dispute that earlier the plaintiff had filed a civil suit2 (hereinafter referred to as earlier suit).

6. In her such earlier suit, the plaintiff had claimed that her said brother was Granthi/Sewadar in Gurudwara Sahib and on account of his misconduct, the Gurudwara Management Committee terminated his services which rendered him and his wife shelterless. They contacted her and requested her to permit them to reside at second floor portion at the suit property3. On account of natural love and affection, they were permitted by the plaintiff but since their intention had become malafide and they did not vacate the premises, she

2 Suit No.141/2015

3 WZ-122, Gali No.7, Shiv Nagar, Janakpuri, New Delhi-110058 filed such „earlier suit‟ seeking decree of mandatory injunction against them, directing them to remove themselves from the second floor of the suit premises. She also sought damages and cost.

7. When the above earlier suit was pending adjudication, plaintiff made a statement before the Court that she may be permitted to withdraw the same with liberty to file suit afresh on the same cause of action. Her statement was recorded and the learned Trial Court, accordingly, dismissed the suit as withdrawn.

8. In order to comprehend the controversy in desired manner, it will be appropriate if I take note of the statement made by the plaintiff in such earlier suit and the relevant portion of the order passed by the then learned Trial Court on 08.07.2015.

9. Such statement made by the plaintiff reads as under:-

“Statement of Smt. Sant Kaur, w/o Sh. Chattar Singh, r/o WZ-

122, gali no.7, Shiv Nagar, New Delhi-110058.

On S.A.

I am plaintiff in the present suit. I withdraw the present suit. The same may be disposed of accordingly. I may be given liberty to file fresh suit, if any, on the same cause of action.”

RO & AC (Subhash Kumar Mishra) Civil Judge-05/West/THC

08.07.2015”

10. The relevant extract of the order dated 08.07.2015 reads as under:-

“At this stage, plaintiff states that she wants to withdraw the present suit with liberty to file fresh suit, if any, on the same cause of action.

Her statement to this effect also recorded separately.

In view of the said statement, suit of the plaintiff stands dismissed as withdrawn.

File be consigned to Record Room.”

11. The sole controversy revolves around the fact whether the liberty as prayed was granted or not.

12. This becomes important in view of Order XXIII Rule 1 CPC, which reads as under:-

“1. Withdrawal of suit or abandonment of part of claim.—

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1