TMI Blog1981 (6) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... operates as res judicata. He is not a defaulter. The plaintiff's objection was that the previous title suit was withdrawn with liberty to sue afresh and so there was no question of res judicata. 2. The learned Munsif accepted the plaintiff's contention and stated that the previous decision did not operate as res iudicata. He, however, found that the defendant was a defaulter from October, 1973. Hence necessary order was passed in this respect. A direction was given to defendant No. 1 to liquidate the arrears in lump by 30th April. 1981, and also to pay the current rent within the 15th day of each month. Hence this revisional application by the defendant-petitioner No. 1. 3. The learned Advocate appearing on behalf of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nevertheless, that permission for withdrawal granted by the court has the effect of giving the plaintiff of that suit permission to sue afresh on the subject-matter of the suit. Moreover, when that suit was withdrawn, the effect in law is that there was no such suit. Consequently the question of res iudicata is out of the way. Further elaborate submissions have been made on other points, which are unnecessary fax the purpose of disposal of this simple revisional application. 5. It appears that Title Suit No. 284 of 1977 was permitted to be withdrawn by the learned Munsif. The plaintiff made a prayer for liberty to bring a fresh suit. No order was given thereon, but that prayer was not refused. In the Bench case of Golam Mahomed v. Shib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (1938) 42 Cal WN 492 it has been stated that a party has a right to file an appeal against an adverse finding, which is sought to be appealed against, on the ground that such finding is one to which the rule of res judicata applies. The question whether that view of the Calcutta High Court is correct was left undecided by the Supreme Court. 8. Nevertheless, the bar enjoined by Sub-rule (4) of Rule 1 of Order 23 of the Civil P. C. not to bring another suit on the same cause of action, has no application because the claim and the subject matter are different. Moreover, that question is not at all germane in his revisional application. 9. Since the plaintiff of that suit was permitted to withdraw from it with liberty to sue a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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