2020 AIR CC 1296 (CAL) ::AIROnline 2020 Cal 109 ::(2020) 211 All Ind Cas 318 (Cal) ::(2020) 2 ICC 524 ::2020 (4) Cal LT 335 ::2020 (211) All Ind Cas 318 ::2020 (2) ICC 524

Calcutta High Court

Hon'ble Judge(s): Bibek Chaudhuri , J

(A) Civil P.C. (5 of 1908) , O.23 R.1(4)— Withdrawal of suit - Bar to fresh suit - Earlier suit for declaration of title and permanent injunction withdrawn with leave of Court - Subsequent suit for title and possession when plaintiff dispossessed from suit property - Cause of action in both suits, not identical but completely distinct and separate - Subsequent suit not barred under O.23, R. 1. (Para 24 25) (B) Civil P.C. (5 of 1908) , O.23 R.1(4), S.11— Withdrawal of suit and res judicata - When suit is withdrawn, no issue of fact or law is decided - There is no finality of dispute - Res judicata not applicable. The distinction between res judicata and withdrawal of suit lies in the fact that while in the former, the matter is heard and finally decided between the parties, in the latter the plaintiff himself withdraws or abandons his claim before it is adjudicated on merits. The plea of res judicata to be specifically pleaded and proved, and if a party fails to raise such plea it will be deemed to have been waived. Such plea cannot be raised for the first time at the stage of appeal or for the first time in appeal before this Court. Withdrawal of a suit under Order XXIII operates completely in a different field and does not deci....