 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Civil Revision Application No. 22 of 2009 (Narayan Sambhaji Shedame & ors. Vs. Shri Awaleshwar Deosthan & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S.B. Solat, Adv. for the applicants. CORAM : Smt. Vasanti A. Naik, J. DATE : 1 st APRIL, 2009 By this civil revision application, the applicants challenge the order passed by the Civil Judge, Jr. Dn., Babhulgaon, on 6/2/2009, rejecting an application filed by the applicants under Order VII, Rule 11 of the Code of Civil Procedure, seeking dismissal of the suit filed by the original plaintiffs. Applicants are the original defendant nos. 2 to 7. A suit was filed by the plaintiffs against the defendants for grant of permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs over the suit property. The suit was filed under the provisions of Section 38 of the Specific Relief Act. The defendants filed an application under Order VII, Rule 11 of the  Code of Civil Procedure for rejection of the plaint on the ground that the plaintiffs had filed Regular Civil Suit No. 13/2008 on the same cause of action and since the said suit was withdrawn by the plaintiffs on 5/12/2008 in view of the pursis at exh. 33, the second civil suit bearing Regular Civil Suit No. 41/2008 was not maintainable on the same cause of action. It was the case of the revision applicants that the plaintiffs had not sought any liberty from the trial Court to file a fresh civil suit and, therefore, the Regular Civil Suit No. 41/2008 ought to have been dismissed. The plaintiff filed a reply to the application under Order VII Rule 11 of the Code of Civil Procedure and stated therein that there was a technical defect in filing the suit as the permission of the Charity Commissioner was not sought for filing the same, before institution of Regular Civil Suit No. 13 of 2008. According to the plaintiffs, it was mentioned in the pursis that the plaintiffs were withdrawing the suit by keeping their right to institute a fresh suit intact as they had obtained the permission of the Charity Commissioner and  wanted to file a suit on the basis of the permission so granted. It was the case of the plaintiffs that the suit had been withdrawn on the ground that the suit was related to the trust property and there was no permission of the Charity Commissioner before filing the same, though subsequently, the permission was obtained. The cause of action, according to the plaintiffs, in the two suits was different as the first suit was not based on the permission of the Charity Commissioner and the second suit i.e. Regular Civil Suit No. 41/2008 was based on the same. The trial Court, after hearing the parties, by the order dated 6/2/2009, rejected the application filed by the defendants. The order dated 6/2/2009 is challenged in the instant revision application. Shri S.B. Solat, the learned counsel for the revision applicants, submitted that the second suit filed by the plaintiffs was not tenable as it was based on the same cause of action and the plaintiffs had not sought liberty to file the second suit on the same cause of action. Even otherwise, according to the learned counsel for the revision applicants, the  second suit was not tenable even if it is assumed that the liberty was granted by the Court in the earlier suit to file the second suit if it was based on the same cause of action. The learned counsel for the revision applicants relied on the decision reported in 2008(6) All Maharashtra Reporter 309, to substantiate his submission. The learned counsel for the revision applicants submitted that the pleadings in both the suits showed that the cause of action was the same and, therefore, the second suit ought to have been dismissed as not maintainable. I have considered the submissions made on behalf of the revision applicants and have also perused the order dated 6/2/2009 which is challenged in the revision application. It is apparent from the documents which are annexed to the revision application that a pursis was filed by the plaintiffs in Regular Civil Suit No. 13/2008 stating therein that the said suit was instituted without obtaining the permission of the Charity Commissioner and the permission of the Charity Commissioner was obtained during the pendency of the suit.  It was stated in the pursis that the plaintiffs desired to file a fresh suit on the basis of the permission so granted and they had kept their right to file a fresh suit intact. It is submitted on behalf of the plaintiffs that due to technical defect, the plaintiffs were not desirous of prosecuting the suit. The Court permitted the plaintiffs by an order dated 5/12/2008 to withdraw the suit in view of the pursis filed by the plaintiffs. It appears that after the first suit was withdrawn, the second suit was filed by the plaintiffs on the basis of the permission granted by the Charity Commissioner. Hence it is clear from the facts of the case that the cause of action for institution of the first suit and the cause of action for institution of the second suit was different and based on distinguishable facts. The trial Court rightly held that in the present suit the cause of action arose in view of the permission granted by the Charity Commissioner to institute a suit. The Court further rightly observed that the plaint could not have been rejected on the basis of the submission made in the application under Order VII, Rule 11 of the Code of Civil  Procedure. The judgment reported in 2008 (6) All Maharashtra Reporter 309 cannot be made applicable to the facts of this case as in the reported decision, this Court held that though liberty is granted by the Court in the earlier suit to file a second suit, the second suit cannot be entertained if the same is based on the same cause of action. Such is not the case here. The first suit was withdrawn in view of the technical defect and after the technical defect was cured, the second suit was instituted after obtaining the permission of the Charity Commissioner. No fault can, therefore, be found with the order passed by the trial Court on 6/2/2009 on the application under Order VII Rule 11 of the Code of Civil Procedure. For the reasons stated aforesaid, the civil revision application is dismissed with no orders as to costs. JUDGE RMP