IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 616 OF 2005 Malappa Maruti Yempe..... ...... ...... Appellants V/s Ganpati Hanmant Mangeni & Ors. ...... ..... Respondents. Ms.Gauri Godse, Adv. For the appellant. Mr.P.R.Arjunwadkar, Adv. For respondents 1 and 2A to 2F. CORAM: A.P.DESHPANDE, J. 4th FEBRUARY, 2009. PC: This second appeal is directed against a judgment and decree passed by the District Judge confirming the judgment and decree passed by the trial court in favour of the original plaintiff/respondent herein which goes to restrain the appellants from interfering with possession of the respondent in regard to the suit property. The suit property are agricultural lands. The present respondent/plaintiff has purchased the suit lands from the original landlord. The appellants claim to be the tenants in the said lands and thus litigation was fought at different forums. Record reveals that family of present appellants who are claiming to be tenants have lost the said litigation. Thus the title of the original landlord stands established and as the respondents have stepped into the shoes of the landlord on account of purchase of property could be safely stated to have title to the suit property. The 1 present appellants had caused obstruction to the possession of respondent in regard to suit lands in the year 1983 and hence suit for injunction was filed by respondents before the trial Court. It is the case of the present respondents that as the appellants assured the respondents in the earlier suit that they would not obstruct possession of the present respondents the earlier suit was withdrawn. However as the respondents again obstructed the possession in the year 1984 the present suit came to be filed by the respondents. 2. On the above narrated facts learned counsel for the appellant has contended that by virtue of operation of provisions contained in order 23 as the respondents had withdrawn the suit without obtaining leave of the court they cannot institute a second suit. The said contention has been rejected by both the courts below by recording finding of fact that the cause of action for instituting the suit in the year 1983 (earlier suit) was obstruction caused by the appellants in the year 1983 whereas in the present the cause of action is the obstruction to the possession caused by the appellants in the year 1984. Learned counsel for the appellant has placed reliance on a judgment in the case of Sarguja Transport Service v/s State Transport Appellate Tribunal, Gwalior & Ors. 1987 (1) SCC 5. In the said judgment the Apex Court has considered the provisions of order 23 and has held thus : “Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the 2 Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code ............” So the bar in regard to filing of fresh suit is in relation to the same cause of action. The suit in the present case is one for injunction seeking to restrain the appellant from obstructing the possession. The earlier suit was based on earlier act of disturbance of possession and the said suit is stated to have been withdrawn as the appellant assured that they would not thereafter cause any obstruction. In all fairness it needs to be stated that neither the plaint in the earlier suit has been placed on record nor it has been brought on record as to whether previous suit was withdrawn after obtaining leave of the court or otherwise. Despite this position, the position in law does not change in as much as fresh suit for injunction based on subsequent cause of action would be maintainable and would not be barred by order 23 rule 1 of Code of Civil Procedure. As no substantial question of law emerges for consideration the appeal stands summarily dismissed. 4.2.2009. 3