Principle of resjudicata

krishna (Querist) 19 February 2016 This query is : Resolved
Respected Sir / Madam,

Plaintiff has filed this fresh suit with liberty to file fresh because in earlier suit plaintiff could not add all necessary parties including legal heirs of Defendant ‘A’ who had died. After the death of ‘A’ plaintiff failed to bring legal heirs of ‘A’ due to circumstances which were beyond the control of plaintiff but no order of abatement was passed. (Plaintiff is illiterate person)

After three years of death of Defendant ‘A’ , (with new lawyer) Plaintiff applied to court for withdrawal of suit with liberty to file fresh suit as all concerned parties are not added to the suit. Defendant ‘B’ objected the withdrawal stating that suit is abated as Defendant A died & plaintiff did not bring legal heirs on record.

Court overruled the objection of abatement of Defendant ‘B’ & allowed the withdrawal stating that ‘advocate of plaintiff failed to take proper steps in the matter & it will not be proper to throttle the grievance of plaintiff without adjudicating in proper manner’

Plaintiff filed the fresh suit impleading C & D legal heirs of A on Record.

Defendant ‘B’ again took objection of abatement that fresh suit is abated because earlier suit was abated against A & hence legal heir of A i.e. ‘C & D’ cannot be made party to the fresh suit. Hence fresh suit is also abated against C & D.

1. Whether principle of resjudicata applicable here as objection of abatement of suit against Defendant A already overruled & decided in favour of plaintiff in earlier suit hence Defendant ‘B’ cannot take this objection in fresh suit ?

2. Whether objection of Defendant B valid when permission is granted to file fresh suit.

3. Your other view, advice if any.

Please give reference of similar case if any. Defendant B has taken this objection under 9A of CPC, 1908 for framing preliminary issue. I am Plaintiff in person.

Thank you. Please reply.

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Guest (Expert) 20 February 2016
resjudicata means a issue already settled in past.

Petitioner has right to withdraw suit at any time before judgment. Courts normally take care of lapses by attorney of parties and omissions of important information because aim is to give proper justice.

Devajyoti Barman (Expert) 20 February 2016
The fresh suit clearly hit by res judicata.
The legal heirs get their legal rights from the predecessor in interest only who were made party in the previous suit.
The second suit will not survivie

Rajendra K Goyal (Expert) 20 February 2016
Agree with the expert Devajyoti Barman.

krishna (Querist) 20 February 2016
Respected Dr Rajendra K Gupta sir, Devajyoti Barman sir, Rajendra K Goyal sir thank you for your reply.

with utmost respect to your view, I want to add something which i think not given attention.

First in earlier suit court did not passed order of abatement even after the objection of Defendant 'B'.

In earlier suit there was two more defendant 'E & F' . Advocate of Plaintiff misunderstood 'E & F' as legal heir of Defendant 'A'.

Advocate of plaintiff was from legal aid given by court.

In earlier suit After the death of Defendant'A' court has asked to advocate of plaintiff about legal heirs of 'A'.

Advocate of plaintiff informed to the court that 'E & F' are the legal heir of A & they already on record as Defendant & thereafter court proceeded on the assumption that legal heirs are on record.

then after changing the lawyer plaintiff withdraw the suit & court granted liberty stating as above.

considering this situation that failure of plaintiff to bring legal heir on record was not willful. It was an mistake of lawyer.

provisions regarding bringing legal heir on record are directory & not mandatory.(Please tell if i am wrong)

Is it possible that fresh suit wiil survive ? if yes then please explain.

Thank you. Please reply.

Principle of resjudicata

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