Case: UNIVERSITY OF AGRICULTURAL SCIENCES Vs. SMT. SAROJ GUPTA

4. Facts lies in a very narrow compass. There had been land acquisition proceedings under the provisions of Land Acquisition Act 1894 (in short the Act). The land had been acquired way back in the year 1977 and in 1980. The dispute arose with respect to the land acquired in the year 1980. Notification under Section 4 of the Act was issued on 9.3.1978 and it was finally acquired in the year 1980. The plaintiff had purchased some part of the land in the year 1982 by a sale deed. On the basis of the sale deed he filed a suit for relief of permanent injunction contending that he was the owner, his land had not been acquired and he continued to be owner of the land as such University of Agricultural Sciences be permanently restrained from interfering with the possession. The suit was ultimately decided on merits and trial court dismissed the suit holding that the suit land formed part of the land which had been acquired for the purpose of University. The dispute was with respect to the fact whether the land of the plaintiff was covered in acquisition. Be that as it may, it is an admitted fact that the suit land was the same in the previous suit for permanent injunction and issue had been framed in previous suit with respect to the fact whether the suit land had been acquired by the University. After dismissal of the suit the first appeal and the suit itself was withdrawn, however, without reserving any liberty to institute fresh suit. The suit and appeal arising out of aforesaid 1993 suit were withdrawn on 13.8.2001.5. Thereafter fresh suit for declaration and permanent injunction was filed on 9.10.2002 out of which the present appeal arises. The same had been decreed by the trial court which had been affirmed by the High Court in the first appeal mainly on the ground that the defendant-University was unable to prove that the suit land had been acquired by it in the acquisition proceedings. However, certain documents had been filed later on indicating that the suit land had been acquired.

Reasoning:
8. After hearing learned counsel for the parties, we are of the considered opinion that appeal deserves to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The Regular First Appeal arising out of the same was withdrawn vide order dated 13.08.2001 and also the suit. Since the suit as well as the appeal was withdrawn and the liberty has not been reserved for instituting a fresh suit under Order 23 Rule 1(3). Hence the provision under Order 23 Rule 1(4) preclude the plaintiff to institute the fresh suit .10. Bare reading of the aforesaid Order 23 Rule 1(4) makes it crystal clear that the plaintiff can, as against all or any of the defendants, abandon his suit or abandon a part of his claim with the permission to file fresh suit in respect of the very same subject matter or such part of the claim. The Court under Order 23 Rule 1(3) can grant permission to file fresh suit in the exigencies provided under Order 23 Rule 1(3)(a)(b) in case permission has not been granted under Order 23 Rule 1(3), the Rule 1(4) of Order 23 preclude institution of fresh suit in respect of such subject matter or its part of the claim. Merely by the fact that in the fresh suit prayer had been added for declaration of title alongwith injunction would not change the complexion of the case. The relief of declaration of title could have been claimed in the earlier suit otherwise also previous suit was based on title. The bar of Order 23, Rule 1(4) is clearly attracted and fresh suit could not be said to be maintainable.