IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.613 of 2006 AKSHAY KUMAR PANDEY Versus KAILASH BIHARI PANDEY & ORS ----------- 3. 20.10.2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order rejecting primarily two issues pressed by the petitioner, defendant in the suit, does not suffer from any jurisdictional error, inasmuch as the court after perusing the earlier plaint and the present plaint has gone to hold that the suit is not barred by limitation and has further held that the suit is also not barred under the provisions of Order 23 Rule 1 C.P.C. This Court has carefully gone into the averments made in paragraphs no. 8 and 13 of the plaint and it finds that whatever has been stated in those paragraphs definitely for the time being, till evidence is adduced by the petitioner, would be good enough to hold that the suit was maintainable and not barred by limitation. The reliance placed by the counsel for the petitioner on a judgment of the Apex Court 2 in the case of Haridas Das vs. Smt. Usha Rani Banik & ors., reported in 2006(2) PLJR 270 (S.C.) can have no exception in law because that only lays down the concept and scope of order 14 Rule 2 C.P.C. question would, however, arise when such principles have to be applied in the light of the facts of the present case. The court below is the context has noted that the earlier suit in which the allegation of encroachment was made was not only for a lesser area but also that it was sought to be withdrawn on an understanding of the plaintiff opposite party that such encroachment was voluntarily abandoned by the defendant-petitioner. It may be either a correct or incorrect statement but when a fresh cause of action of the year 1992, on 1.6.1992, as has been explained to be the reason for fresh encroachment or for filing of the suit, the court below was not in a position to hold that the suit was barred either under Order 23 Rule 1 or Article 65 of the Limitation Act should not have applied to the facts of the present case. 3 That being so, this Court would not find any reason to interfere with the impugned order. Accordingly, this civil revision application is dismissed. (Mihir Kumar Jha,J.) Surendra/