Rule 1 of Order XXIII provides that when a plaintiff once institutes 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.
Does this principle apply to an interlocutory applications ?
Section 141 of CPC permits the court to allow procedures for suits to be followed in all proceedings.
A.Sengoda Gounder vs P.Malliga – Whether the principle contained in Order XXIII Rule 1 of CPC can be applied to interlocutory applications as Order XXIII Rule 1 of CPC applies only to a suit. In my view, the issue has to be examined from the point of view to prevent a litigant from abusing the process of the Court by instituting fresh application after withdrawing the earlier application for the very same interlocutory relief. 25.Section 141 of CPC also permits the court to allow procedures for suits to be followed in all proceedings. Applying the same to the facts of the case it is evident that all principle enshrined in Order XXIII Rule 1 of CPC can be applied to the 2nd application. 26.Only exception to Order XXIII is Order XXII Rule 4 is qua execution proceedings.
S.Narain Singh and another vs M/s.Ram Gopal Madan Lal AIR 1981 Delhi 88- Under sub-rule (4) a plaintiff is precluded from instituting any fresh suit in respect of the claim withdrawn by him. Thus if a plaintiff withdraws a suit, he is not entitled to file a fresh suit on the same cause of action. Similarly if the plaintiff files an application for the grant of a temporary injunction and after notice to the opposite party who has filed a reply and during the course of arguments the plaintiff withdraws the application for temporary injunction, it appears that the plaintiff is debarred from instituting a fresh application unless there has been change of circumstances since the date of dismissal of the previous injunction application. Section 141 of the Code makes the procedure applicable to the suits to all proceedings in court of civil jurisdiction. The proceedings for the grant of temporary injunction are proceedings in a civil court. Thus reading together O. 23 and Section 141 of the Code it appears that the present application for temporary injunction filed on 16th April, 1980 decided by the impugned order dated 15th July, 1980 is barred under sub-rule (4) of Rule 1 of Order 23 of the Code