1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.2373 OF 2009 1 Smt Laxmi w/o Naresh Chandnani and another Petitioners Versus 1 Uddhav L. Bhathija s/o Lunidaram and another Respondents Mr.R.F.Totla, advocate for petitioners. Mr.S.P.Chapalgaonkar, advocate for Respondent No.1. Mr.S.S.Deshmukh, advocate holding for Mr.R.R.Karpe, advocate for Respondent No. 2. CORAM : R. M. BORDE, J. DATE : 25th March, 2010. PER COURT : 1 Heard learned Counsel for respective parties. 2 Petitioners herein - original defendants tendered an application before the trial Court objecting to the entertainability of the suit on the ground that same is not entertainable in view of bar contained in Order II Rule 2 of the Code of Civil Procedure. It is pointed out that there was earlier suit presented by plaintiffs - Respondents herein being Regular Civil Suit No.184/2007 claiming decree of perpetual injunction against defendants. The suit was founded on the cause of action alleged to have arisen on 09.02.2007. It is further pointed out that the earlier 2 suit, which was for securing decree of perpetual injunction, came to be withdrawn by the plaintiffs and order permitting withdrawal has been passed by the trial Court on 15.11.2007. The order permitting withdrawal was unconditional. Plaintiffs did not seek leave, as contemplated by Order XXIII Rule 1 for presenting fresh suit. It is further contended that without securing leave, plaintiff proceeded to file suit, being R.C.S. No.40/2008 in the Court of Civil Judge, Senior Division, Kopargaon, claiming relief in respect of specific performance of agreement as well as perpetual injunction. It is, thus, contention of defendants that the subsequent suit, which is founded on same cause of action, is barred by Order II Rule 2 of the Code of Civil Procedure. 3 Per contra, it is contended by learned Counsel for Respondents that earlier suit was for passing decree of perpetual injunction and the relief in respect of specific performance of agreement was not claimed. Moreover, it is claimed that the suit was withdrawn by plaintiffs before issuing summons to the defendants and as such, bar contained under Order II Rule 2 of the Code of Civil Procedure need not come in their way in presenting subsequent suit. The trial Judge after considering rival contentions has rejected the application presented by defendants raising preliminary objection. 4 I have perused the order passed by trial Court. That, so far as issue in respect of bar for entertaining subsequent suit is concerned, in my opinion, it is a 3 triable issue and has to be framed by the trial Court on the basis of pleadings, those may be raised by the parties. The issue so framed in respect of bar either under Order II Rule 2 or in respect of non compliance of provisions of Order XXIII Rule 1 of the Code of Civil Procedure are concerned, same has to be dealt with by the trial Court after recording evidence of the parties. At this interlocutory stage, the trial Judge was right in refusing to entertain the application. The points agitated by defendants are specifically kept open for being agitated at the time of trial of the suit and decision rendered on interlocutory application by the trial Court will not be an impediment in considering such objections. In this view of the matter, no interference is called for in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. 5 Petition stands rejected. ( R. M. BORDE) JUDGE adb/wp237309