A property at Gurugram worth 70 lakhs in unapproved area where registry process was banned and hence was named on January 2017 through GPA at Noida, agreement of sale, possession letter, will all registered; to my wife and father in law for my consideration paid through wife's account deposited in cash & transfer from my accounts. I took loans for 40 lakhs and constructed a 4 storey house over that plot. Wife is earning just 28,000/month. Father in law is BPL along with all of his family members. They are holding this property as trustee. Wife found adulterous, attacked me and my mother & denied to name my property back. I instituted suit for permanent injunction & consequential relief in August 2017 against wife defendant no.1 while her father defendant no.2 ex-parte and GPA giver was not made a party. Court referred case to mediation center and a compromise got signed for agreeing 50% share for me/plaintiff in lieu of acceptance of loans borrowed by me/plaintiff for 40 lakhs. Settlement was signed by plaintiff/me and defendant 1 along with counsels of me & wife. Settlement contained clauses for condoning of her cruelties on me & my mother. Finding impossible to stay united & to avoid condonation in divorce case; on oral agreement to wife; the suit was withdrawn on wrong advice without liberty while the mediation report was under consideration. A legal notice sent in Dec 2017 to name the 50%share in plaintiff's name which was never replied. Again, a new suit was instituted after 30 days of notice period in January 2018 for same relief with same title and same subject matter for permanent injunction and consequential relief with different cause of action (i.e. legal notice). A stay order u/o 39 rule 1 &2 along with section 151 CPC was granted and issue framed for maintainability. Now, a top lawyer advised that this new suit is wrongly filed and will be dismissed according to order 23 or Order 2 rule 2 or section 11 of CPC. Also because the relief sought via this suit was also available also through previous suit. Lawyer also said that at max I can get 40 lakhs agreed in settlement. Questions: 1. Whether my suit is maintainable? 2. Whether I have no locus standi to file the suit? 3. Whether cause of action is different or same? 4. Whether suit is within limitation? 5. Whether I should continue with this suit or should restore previous suit. Judgements studied so far: 1. K.S.E.B v Abraham Kerala High Court 2. Kuldeep singh vs virender singh P & H High Court 3. K.S. Bhoopathu v Kokila Supreme Court 4. Neelakanta Pillai v Madhavakurup-Kerala High Court 5. Mahadkar Agency v Padmakar achanna -Bombay High Court 6. CPC 1908 Lexis Nexis page 361-363
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1. Yes without a liberty of court subsequent suit on the basis of same cause of action is barred by order 23 rule 2 cpc. However section 11 does not apply here as the first suit was not adjudicated on merit.
2. Yes you have no locus to file the suit as your name does not appear on any titile deed.
3. It is same since releifs are same as well.
4. Yes but not maintainable
5. Previous suit can not be restored anymore. So you have no option but to continue with the previous suit.
1. If earlier suit has same reliefs then the fresh suit will be dismissed on ground of Resjudicata.
2. Yes if it's for different cause of action only then it may succeed.
If the previous suit is not proper witthdraw with liberty to file a fresh and if it's not in limitation delay will be condoned by court.
You ought to have sought court liberty to file fresh suit
2) your second suit is not maintainable
3) cause of action is same reliefs claimed are identical
4) you would not get any reliefs in subsequent suit and it would be dismissed under section 11 of cpc
Please read and reply after due deliberations else please don't even reply as it will create more confusion only: - Please advise now as I am stating my research and stating the logic for success. You may disagree. 1. Whether my suit is maintainable? Ans: Yes because section 11 not applicable as earlier suit was not decided on merits. Secondly, order 23 rule 1 does not apply as cause of action is different as stated in Mahadkar Agency v Padmakar achanna shetty AIR 2003 Bom 136. Thirdly, order 2 rule 2 is not applicable as earlier suit was not decided on merits. 2. Whether I have no locus standi to file the suit? Ans: May be no because prima facie there is agreement stating my investment of 40 lakhs in the suit. But may be yes as my name does not appear in GPA. 3. Whether cause of action is different or same? Ans: Yes, cause of action in fresh suit is based on compromise and later denying to honor the settlement. 4. Whether suit is within limitation? Ans: Yes as the GPA was made in Jan 2016 and suit were filed before lapse of 2 years whereas limitation is 3 years. 5. Whether I should continue with this suit or should restore previous suit. Ans: I should continue with this suit as it is likely to be successful. Second option is to restore the earlier suit as there is no harm to defendants but irreparable loss to me/plaintiff if not restores as supported in Kuldeep Singh vs Virender Singh in Punjab & Haryana High Court 2015. Now, please give law points. Regards,
It's better you file a fresh suit as you have cause of action if for compromise and for not honouring the Settlement. I don't find only because your name appears in GPA you have cause of action. It depends how the said GPA affects you to in order to Institute a suit against other necessary parties.
My reply or stand remains the same after your addition of query.
1. Whether my suit is maintainable? --- Rare possibility, will dismiss for res judicata and no liberty -- Plea Under Order 2 Rule 2 CPC Sustainable Only If Plaint In Earlier Suit Is Proved:
2. Whether I have no locus standi to file the suit? --- Without liberty withdrawn, suit attained finality. Locus over.
3. Whether cause of action is different or same? --- Related to same issue, same. File specific performance suit.
4. Whether suit is within limitation? Yes.
5. Whether I should continue with this suit or should restore previous suit. - restore previous or file SP suit.
Civil Procedure Code, 1908, Order 23, Rule 1-- Withdrawal of previous suit without seeking liberty to file a fresh suit - Bar to file fresh suit - Cause of action and relief claimed have to be construed together and if cause of action and relief claimed in the previous suit and subsequent suit are not same, then subsequent suit is not barred.
A. I do not find any reason for the suit to be non maintainable. The earlier suit was never decided on merit and moreover the settlement was never decreed by the court and as such you do have all the right to institute a fresh case in light of the fact that the mediation is not being honored and therefore you want the court to decide the matter on merit.
B. Share the copy of the order by means of which the earlier suit was disposed off/ dismissed. Based on the language of the said order, I will be in a better situation to tell that whether you should continue with this suit or recall the previous one.
Still based on the facts provided by you, I would advise you to go ahead with the present case.
Regards
The principle underlying rule 1, Order XXIII of the
Code of Civil Procedure that when a plaintiff once insti-
tutes a suit in a Court and thereby avails of a remedy given
to him under law, he cannot be permitted to institute a
fresh suit in respect of the same subject matter again after
abandoning the earlier suit or by withdrawing it without the
permission Of the Court to file fresh suit.
2) it is your case that fresh suit was instituted for same subject matter with same reliefs
Rule 1 Order XXIII of Code of Civil Procedure 1908 "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 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other. person.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect,
Order 2 Rule 2 CPC states that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
. As per the above referred provisos of law, your suit may not be maintainable.
Since you have not obtained leave of court before withdrawal the fresh suit may not be maintainable.
The defendant may file a petition under order 7 rule 11 seeking to reject the plaint.
Question1: whether not honoring a mediation compromise settlement agreement is a different cause of action? Question2: The earlier suit was not decided on merits and was at preliminary level and case was not even started on evidence. Question3: How to restore the earlier suit and what to do in present suit? Question 4: A stay order already in force; a contempt of court is pending before Court and an appeal is lying in session Court against the stay order of injunction. How to handle all these now. Question 5: Whether I should file a suit for specific performance or restore the earlier one or continue the present case if cause of action is different? Question 6: New evidence is compromise happened in previous stage. Subject matter is also different as present cause of action arose when defendants refused to honor the said agreement even after sending legal notice. Claim is also included that they had accepted at least loan part invested in the property. Question 7: What if the evidence lead to clear cut conclusion that the property belongs to the plaintiff then applicability of order 23 rule 1? Should not Court find any way out in interest of justice as the plaintiff is the one who will suffer irreparable loss in case no relief is given. Question8: Instituting a fresh suit on different cause of action (dishonoring compromise): Mahadkar agency v padmakar achanna shetty AIR 2003 Bom 136 says: where party wants to file a suit on basis of a different cause of action, question of leave or liberty to file a fresh suit does not arise. What is your take? Question9: One such order says if cause of action is different then subject matter is also different. How is affect maintainability of suit. Please answer point wise. Any further suggestions. In detail feedback shall be highly appreciated. Please put in your best mind as I am big financial bubble just because of my honesty and loyalty. regards,
1) it is separate cause of action
2)once your earlier suit has been withdrawn it would not be restored by court
3) continue with your existing suit
4) wait for pending cases to be disposed of
5) don’t file suit for specific performance
6) provisions of order 23 Rule 1 would bar fresh suit . Court would not find way out in interest of justice
1. No. It may be cited as an example of the attitude of the person who has not honored the same.
3. If the earlier suit was disposed as contested and judgment passed, then the aggrieved party may prefer an appeal agaisnt the judgment.
4. They are to be challenged on merits in each individual case accordingly, your advocate will be able to guide you because without knowing the nature and status of case no comment can be opined.
5. If there is a different cause of action a fresh suit may be filed. Maintainability for specific performance of contract should be ensured before thinking of filling a suit in that context.
6 and 7: can be opined after seeing the case related papers and the compromise agreement, any opinion given based on your narration may ,mislead you.
8. Filing a fresh suit on a different cause of action can be made however if the relief is sme then the court may put a question about the maintainability.
9. If the subject matter is also different then ther may not be problem about the relief sought, you may discuss with your advocate and proceed.