A fresh suit is barred under Order 23 Rule 1(4) CPC if a prior suit was withdrawn without liberty to file again, as both suits involve the same subject matter.

ORDER

The appellant has filed this petition challenging the judgment, dated 05.09.2023, passed by District Judge Chanderi, District Ashoknagar (M.P.) in Regular Civil Appeal No.23-A of 2022 whereby learned Appellate Court has set aside the order passed by the learned Trial Court and has remanded the matter for adjudication of suit on merits. Prior thereto, the Trial Court vide judgment dated 20.09.2022 had allowed the application under Order 7 Rule 11 CPC filed by appellant and rejected the plaint filed by the respondent no.1 being barred by Order 23 Rule 1 CPC.

[2]. Since, the status of parties to this appeal is different in two suits being discussed in this order, in order to avoid confusion, they are referred with their names in this order as Ghasiram (defendant of this suit and plaintiff in earlier suit) and Smt. Mula Bai (plaintiff of this suit and plaintiff in earlier suit).

[3]. The facts which are not in dispute between the parties is that the land bearing Survey No.145 ad-measuring 1.986 hectare situated at Kasba Chanderi, District Ashoknagar (M.P.) was owned by one Amra Sahu. Ghasiram has filed a separate suit (C.S. No.4-A/2016) claiming declaration of his title over the said land and for permanent injunction. Since, in this case we are not concerned with the plaint filed by Ghasiram, the facts pleaded in the plaint are not required to be narrated. In this case, we are concerned with the issue as to whether the present suit filed by Mula Bai is barred under Order 23 Rule 1(4) CPC as the averments made and the relief claimed by her in this suit are similar to the counter claim filed her in C.S. No.4-A/2016.

COUNTER CLAIM FILED BY SMT. MULA BAI IN C.S. NO.4-A OF 2016

[4]. In the suit filed by Ghasiram, Smt. Mula Bai had earlier filed a counter claim inter-alia pleading that Smt. Kalawati Bai was earlier married to one Amaan Sahu and out of this wedlock, Ghasiram was born; that after the death of Amaan Sahu, Smt. Kalawati was married to Amra Sahu and out of this wedlock, Mula Bai was born. It is pleaded in the counter claim that Mula Bai and Ghasiram are the sister & brother having common mother- Smt. Kalawati Bai. Being the daughter of Amra Sahu & Kalawati Sahu, Mula Bai had claimed half share in the aforesaid land left by Amra Sahu which comes to 0.993 hectare. In the counter claim, Mula Bai had pleaded that even though she is entitled to half share in the property, in order to grab Signature Not Verified Signed by: VIPIN KUMAR the property, Ghasiram filed an application for mutation of his name over the entire land before Naib Tehsildar, wherein she raised the objection. It is pleaded that, in order to give favour to Ghasiram, Mula Bai's name was th mutated only over 1/4 share (i.e. 0.496 hectare) of land left by Amra Sahu whereas she was entitled to 1/2 share i.e. 0.993 hectare. Smt. Mula Bai has also pleaded that the will, dated 19.03.1985, allegedly executed by Smt. Kalawati in favour of Ghasiram is forged. Smt. Mula Bai had prayed for following relief in the counter claim:

[5]. From reading the averments made in counter claim, it is evident that since Mula Bai had already received 0.496 hectare of land i.e. her 1/4th share in the land, in mutation proceedings, she claimed remaining 0.497 hectare in the counter claim. Later on, Mula Bai sought to withdraw her counter claim which was allowed by the learned Trial Court vide order, dated 30.11.2017. It is evident from the said order that the counter claim was permitted to be withdrawn without granting any liberty to Mula Bai to file fresh suit for the same relief. Infact, such a liberty was asked for in the application, however, the Trial Court did not grant any liberty in view of the fact that the counter claim was not withdrawn on account of any formal defect. Thus, the liberty was infact refused by the Trial Court.

PRESENT SUIT FILED BY SMT. MULA BAI

[6]. Smt. Mula Bai has now filed the present suit inter-alia with the similar averments and for the similar relief which