Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Kandapazha Nadar & Ors v. Chitraganiammal & Ors
AIR 2007 SC 1575, [2007] 7 SCC 65
JUDGES: Dr. Arijit Pasayat and S.H. Kapadia
Date of Decision: 16-04-2007
FACTS :-
In this appeal, the appellant challenged the judgment rendered by the Madras High Court. Here, the dispute relating to declaration of title and injunction of the sale deed of suit property between the parties was withdrawn by the defendant from original the court without securing necessary permission to institute a fresh suit. In an appeal before the High Court, observed that in terms of Order XXIII Rule 1 (4) (b) of the Code petitioner is barred to file fresh suit and the principle of res judicata is also attracted. Aggrieved by the order, this petition is presented before this court of appeal.
ISSUE:-
Whether the petitioner should be allowed to defend the validity of conveyance deed in their favour, when the original suit is withdrawn by him without liberty to bring a fresh suit on the same cause of action?
JUDGMENT:-
In the present case, there is a specific pleading by the appellant with regard to the question of issue of estoppels under the impugned orders by the High Court. The learned counsel on behalf of the appellant denied the applicability of Order XXIII Rule 1 (4) (b) of the Code to the facts of the cases. In the second appeal, High Court held to withdraw the suit with no liberty to file a fresh suit and prove the validity of the conveyance in their favour. On delving deep into relevant averments by appellants and judgments, the Court has observed that the order of withdrawal does not constitute a decree under S. 2 (2) of the Code. It was Order XXIII Rule 1(3) not the principle of Res Judicata which bars to file a fresh suit in respect of the same matter.
The principles of res judicata do not preclude the plaintiff to bring a fresh suit in respect of the same matter. The instant case has no application of Order 23Rule 1 (4) to the facts of the cases.
On the basis of the above grounds, it was contended by the appellant that fresh suit is not barred and thus, the impugned order suffers from the infirmity and that therefore, the same is liable to be set-aside. In such a event, the appeal was admitted.
HELD:-
Hence the Court held that an order of withdrawal of a suit without liberty to file a fresh suit, does not amount to a decree of the court and the appellant is free to defence the subject matter in second round of litigation.
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