Pavan 23 August 2024

Civil suite

I am facing civil suit as party in person

My father purchased property in year 2007 . We had filed civil suite against vendor for permanent injunction since vendor only created litigation. In the written statement vendor said boundaries are wrong and property is at other location. So we came to knowledge of these wrong boundaries and vendor constructed house in the sold property

query
In order to file fresh suit with new cause of action do we need to file affidavit for court permission to file fresh suit or just notpress memo in current injunction suit and then file fresh suit for declaration ,rectification of property,recovery of possession

query 2
I allready file affdavit for court permission to file fresh suit in feb 2024 but respondent had not filed counter till date.pls guide

Reply Follow

4 Replies

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 ) 23 August 2024

To file a fresh suit with a new cause of action, you don't necessarily need to file an affidavit seeking court permission. However, you'll need to follow the proper procedure: 1. _Withdrawal of existing suit_: File a notice of withdrawal or a non-pros memo in the current injunction suit, stating that you're withdrawing the suit without prejudice. 2. _Fresh suit_: File a new suit for declaration, rectification of property, and recovery of possession, citing the new cause of action. 3. _New plaint_: Ensure the new plaint is drafted correctly, including all relevant details and prayers. 4. _Court discretion_: The court may exercise its discretion to allow or reject the fresh suit, considering factors like res judicata or constructive res judicata. 5. _Affidavit_: If the court requires, you may need to file an affidavit explaining the reasons for filing a fresh suit and addressing any potential issues with res judicata. 6. _Legal advice_: Consult a lawyer to ensure you're following the correct procedure and addressing all legal requirements. Remember that the court's permission is not necessarily required to file a fresh suit, but it's crucial to follow the proper procedure to avoid any potential legal complications.

T. Kalaiselvan, Advocate (Advocate) 23 August 2024

You may file a petitioon and affidavit under order XXIII rule 1 CPC:

Order 23 Rule 1 of the Civil Procedure Code (CPC) gives a plaintiff the right to withdraw a civil suit at any time after it has been filed. The plaintiff can abandon the entire suit or just part of their claim against any or all defendants. The court can allow the withdrawal after it has satisfied itself.

Here are some details about Order 23 Rule 1:

The plaintiff has an absolute right to withdraw a suit at the appellate stage when rights have accrued.
The court cannot refuse permission to withdraw a suit.
Once an application is filed under this rule, the withdrawal is complete and doesn't require a court order.
The court only needs to give permission if the plaintiff wants to file a new suit for the same cause of action.

Some recent Supreme Court judgments on Order 23 Rule 1 include:

Bombay High Court

A defendant can become a plaintiff if the suit is partially withdrawn and there is no conflict of interest with the original plaintiff.
Madhya Pradesh High Court

A litigant can withdraw a suit and file it again, even seven years after it was originally filed.
Orissa HC

"Sufficient grounds" in Order 23 Rule 1(b) CPC aren't limited to only formal defects.

Pavan 27 August 2024

Thanks for reply sir

we had filed affidavit for court permission to file fresh suit in feb 2024 wherein till date respondent not filed any counter.
In manwhile we had filed fresh suit in district court by mentioning this IA pending with new cause of action.

Query: DO I need to not presh old suit sir since judge not giving order or do I need to attend old suit court for order