SONAL RAVINDRA MAHADWARversusNAMDEV AMBADAS RATHOD AND OTHERS

2026:BHC-AUG:37613



                                                   (1)                          910 WP 13565 OF 2024


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 910 WRIT PETITION NO. 13565 OF 2024

                                  SONAL RAVINDRA MAHADWAR
                                               VERSUS
                            NAMDEV AMBADAS RATHOD AND OTHERS
                                                  ...
           Mr. R. V. Naiknavare, Advocate for the Petitioner
           Mr. M. D. Shinde, Advocate for Respondent Nos.1 and 2
           Mr. E. S. Murge, Advocate for Respondent No.3
                                                  …

                                               CORAM      : AJIT B. KADETHANKAR, J.
                                               DATE       : 19.08.2026

           PER COURT :-

           1. Subject Matter :


                 Upon suffering rejection of temporary injunction in a suit for

           Declaration     of      Ownership      and     Perpetual      Injunction,      present

           respondent/plaintiff sought leave to withdraw the suit, with liberty to file a

           fresh suit on the same cause of action. The Trial Court imposed cost on the

           Plaintiff, and permitted to withdraw the suit with liberty to file a fresh suit.

           The Defendant is aggrieved by the second part of the leave granted by the

           Trial court permitting the Plaintiff to file a fresh suit. Hence this Petition.


           2.    Rule. Rule made returnable forthwith. By consent of the parties, the

           petition is heard for final disposal considering the short controversy.
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3. Facts in brief and submissions:


i.     The respondents filed Regular Civil Suit No.301 of 2022 in the court of

learned Civil Judge, Senior Division, Osmanabad against the present petitioner

seeking a decree of declaration of ownership as also a decree of perpetual

injunction.


ii.    During the pendency of the suit, an application under Order XXXIX

Rules 1 and 2 read with Section 115 of the Code of Civil Procedure was also

filed by the respondents/plaintiffs. The said application came to be turned

down by the Civil Court.


iii.   Thereafter, the petitioner filed an application under Order VII Rule 11 of

the Code of Civil Procedure seeking rejection of the plaint itself.


iv.    During the pendency of the Petitioner’s application, an application came

to be moved by the plaintiffs proposing to withdraw the suit seeking

permission to file a fresh suit on the same cause of action. It was also

mentioned that the suit filed by the plaintiffs was found to be a defective one

and hence, it was necessary for the plaintiffs to withdraw the present suit.


v.     The Trial Court observed these facts and permitted the plaintiffs to

withdraw the suit by imposing costs of Rs.300/- and setting the plaintiffs at
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liberty to file a fresh suit.


vi.    As against this, the petitioner is before this Court under Article 227 of

the Constitution of India. Mr. Naiknaware, learned advocate for the Petitioner

submits that a fresh suit is not permissible on the same cause of action. He

would further submit that the Trial Court ought to have refrained from

granting such liberty to the plaintiffs, which would go beyond the

permissibility of law. He would submit that it is trite law that a fresh suit on

the same cause of action is forbidden. Thus, he submits that the petition be

allowed and the order be set aside.


vii    Mr. Shinde, learned Advocate for respondent Nos.1 and 2 would submit

that the order was passed in the presence of the petitioner. He would submit

that the application was a bona fide one, and upon realizing that the suit was

found to be defective the same was sought to be withdrawn with liberty to file

a fresh suit. He thus prays for rejection of the writ petition.


4. Consideration:


i.     I have heard both the learned Advocates for the respective parties for

some time. Apparently, the application was filed after rejection of the

temporary injunction application. There is nothing placed before me to

indicate that the said rejection order was set aside by the Appellate Authority.
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ii.    It is also true that while the proceedings for rejection of the plaint under

Order VII Rule 11 of the Code of Civil Procedure were pending, this

pursis/application was moved by the plaintiffs. Although the plaintiffs have

sought to withdraw the suit with liberty to file a fresh suit on the same cause

of action, the application was absolutely at the risk of the plaintiffs. Mere

mentioning that they would file a fresh suit on the same cause of action as the

suit was found to be defective will not override the position of law.


iii.   The apprehension of Mr. Naiknaware, learned Advocate for the

petitioner that ‘grant of liberty takes exception to the settled law and legalizes

a further suit of the plaintiffs on the same cause of action’ is not correct.

Although liberty is granted by the Trial Court to file a fresh suit, the said suit

shall always be subject to the existing law including the principles of res

judicata and Order XXIII of the Civil Procedure Code. True that Order XXIII of

the Code mentions about a leave, however such leave shall always be subject

to the law. The Trial court has not granted specific leave to file fresh suit on

the same cause of action.


iv.    It is apprised to the court that the respondent/plaintiff has already filed

another suit. It is open for the petitioner to file a written statement, if not

already filed, and raise a dispute the maintainability of such suit. It is even
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open for the Petitioner to take recourse to Order VII of the Civil Procedure

Code to demonstrate non maintainability of the suit.


v.    The Trial Court is bound to adjudicate upon the maintainability of such

suit on the touchstone of the provisions of law and not merely on the liberty

expressed by the Court in the impugned order.


5.    With these observations, the writ Petition disposed. Rule is made

accordingly.




                                                 [AJIT B. KADETHANKAR, J.]
PRW