The Code as it now stands makes a distinction between ‘abandonment’ of a suit and ‘withdrawal’ from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code; he shall be precluded from instituting any fresh suit in respect of such subject-matter or such party of the claim.
The principle underlying Rule 1 of O. XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file a fresh suit.
The law confers upon a man no rights or benefits which he does not desire. Whoever waives abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any reason, the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII.
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ADVERTISEMENTS:
The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in S. 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent raised, and has been heard and finally decided by such court.
The rule of res judicata applies to a case where the suit or an issue has already been and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue involved, yet the Code provides that a second suit will not lie under sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court. [Sargufa. Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and others, (1987) 1 Supreme Court Case. 5].