DINESH KUMAR SHARMA, J.

1. The present suit has been filed for declaration of title, possession, recovery of mesne profits, and permanent and mandatory injunction against the defendants.

2. The plaintiff has alleged that the plaintiffs have been forcibly dispossessed from the suit property and the defendants No. 4 and 5 have encroached upon the same since 22.11.2023 by way of force, coercion, deceit and preparation of false documents. It has further been alleged that the defendants no.4 and 5 have been using the suit property for their own personal use and generating revenue by illegally leasing the same to a third party without any authority.

3. Briefly stated, the facts as alleged by the plaintiffs are that the plaintiffs purchased two and a half storey built up property bearing Municipal NO. 2799 measuring 111 sq. yds, Khasra No.83, Block-P, Gali No. 19 and 20, situated at Naiwala Estate, Beedon Pura, Karol Bagh from its owner Mr. Om Prakash Mittal.

4. The defendant No.1 was a tenant of the suit property and upon his request, the plaintiff sold the suit property to him vide sale deed dated 06.08.1997. Defendant No.1 had taken a loan from Mr. Sardar Harbans Singh Sethi for purchasing the suit property, however, since he was unable to repay the loan, the defendant No.1 sold the property to Mr.Sardar Harbans Singh Sethi vide sale deed dated 18.03.1999.

5. In May 2001, defendant No.2 and 3 who are the mother and wife of defendant No.1 repaid the complete loan amount and bought back the property from Sardar Harbans Sethi vide sale deed dated 16.05.2001. In November, 2004, the father of the plaintiff Late Mr. Satpal Vij entered into an agreement of sale purchase for half undivided share of the ground floor and basement area for consideration of Rs.25,00,000/- and the physical possession was handed over to him in November 2004 on payment of Rs.10,00,000/-. The remaining payment was agreed to be made at the time of execution of the sale deed. In September, 2005, father of the plaintiff, Late Mr. Satpal Vij got to know that the late Smt. Usha Vij alongwith defendant No.2 had entered into an agreement to sale dated 17.09.2005 with Mr. R.C. Sahni and agreed to sell the complete suit property to him for consideration amount of Rs.56 lakhs. The father of the plaintiffs contacted Late R.C. Sahni and agreed to purchase the suit property from him and in pursuance of which, the plaintiffs and the Mr.R.C.Sahni entered into an agreement to sale for consideration of Rs.58 lakhs and earnest amount of Rs. 4 Lakhs was paid in September 2005.

6. The plaintiff alleged that in December, 2005, when Mr.R.C. Sahni started demanding execution of sale deed and physical possession of the suit property from late Smt. Usha Vij and defendant No.1 and 2, the defendant No.1 and 2 sought for an extension of time for the reasons that the physical possession had been handed over to the father of the plaintiff in 2005. In 2006, allegedly, the defendant No.4 and 5 along with their associates started having disputes with the plaintiffs herein owing to personal animosity and disputes. The plaintiffs alleged that late Smt. Usha Vij and defendant no.2 executed a sale deed in March, 2006 in favour of the defendant No.3 and 4 for the suit property for consideration of meagre Rs.8 lakhs and handed over the symbolic possession. The plaintiff has alleged that this transaction was totally illegal, in view of the fact that an agreement to sale had already been executed with Mr.R.C. Sahni from whom the plaintiffs had purchased the suit property.

7. The plaintiffs had also filed the suit CS (OS) 542/2010 against the defendant No.5 for a suit for recovery of possession with respect to the ground floor adjacent property of the suit property since the same was illegally encroached upon by the defendants in pursuance of one diamond business transaction. Allegedly, the said property was illegally sold by defendant No.5 to one Bawani Shankar in June, 2007. The Court in CS (OS) No 542/2010 cancelled the agreement between defendant No.5 and Bawani Shankar and the possession of the property was handed over to the plaintiff. Allegedly, in May, 2014, defendant No. 3 executed a sale deed with respect to her share of the property with defendant No.4 for a consideration of Rs.20,25,000/-.

8. Plaintiffs have alleged that in July, 2021 on the basis of the sale deed dated 17.03.2006, the defendants attempted to forcibly dispossess the plaintiffs by using threaten and coercion. In August 2021, the plaintiffs filed CS (SCJ) No.1628/2021 in District Court seeking amongst others, the relief of permanent injunction and declaration of sale deed dated 17.03.2006 as null and void. In the said suit, the summons was duly issued. In the meantime, a complaint was also filed with the police in October, 2021. However, the defendants again started harassing the plaintiffs and in November, 2021 with the help of the police, the defendant No.4 and 5 illegally took over the possession of the suit property and further leased out the same to one Mrs. Kajal Dev.

9. In May, 2014, the plaintiffs came to know about the execution of the sale deed by the defendant No.3 in favour of defendant No.4. in May, 2006. Pursuant to such facts, the plaintiffs filed an application for amendment of suit which was dismissed by the learned Court. This order was challenged by the plaintiff vide CM(M) No.622/2023. This Court vide order dated 19.04.2023 disposed of this petition and granted liberty to file the fresh amendment application before the learned Trial Court. Pursuant to which the fresh amendment application was filed by the plaintiff before the learned Trial Court on 21.04.2024. While this application was pending disposal, the plaintiff withdrew the suit on 10.01.2024 and filed the present suit before this Court.

10. Upon the summons being issued, the defendant Nos. 4 and 5 appeared and raised the preliminary objections that the suit is not maintainable.

11. The defendants No.4 and 5 have taken an objection that while the application for amendment of the plaint was under consideration, the plaintiff withdrew their suit on 10.01.2024 without any leave of the Court. The plea taken by the defendant Nos.4 and 5 is that on 02.03.2024, the plaintiff filed the present plaint with the same cause of action, same parties and claiming the reliefs with respect to the same suit property.

12. Learned counsel for the defendant Nos. 4 and 5 submits that in accordance with Order XXIII Rule 4 CPC, if the plaintiff withdraws the suits without seeking leave of the concerned Court, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the plaint.

13. Learned counsel submits that the plaintiffs had not filed any application under Order XXIII Rule 1 (3) CPC. Similarly, no grounds or reasons of formal defects were shown or pointed out by the plaintiffs for withdrawl of the suit and no leave was granted by the Court to file a fresh suit with respect to the same subject matter or part thereof. Learned counsel further submitted that the perusal of the plaint filed in CS SCJ No. 1628/2021 and the present plaint would show that in both the suits the defendants are the same, subject matter of the property and the relief claimed are also similar.

14. Learned counsel for the defendant Nos. 4 and 5 further submitted that this Court also does not have the pecuniary jurisdiction of the value of the relief sought as the subject matter is less than two crores. It has been submitted that in view of Section 9 of the CPC read with Section 5 of Delhi High Court Act, 1966, the jurisdiction of High Court is more than Rs.2 Crores. Learned counsel for the defendant submitted that value of the suit property in the present case, even as per the valuation taken by the plaintiffs cannot exceed One Crore. It has been submitted that the plaintiff has not brought complete facts on record. It has further been submitted that even otherwise there is no prima facie case in favour of the plaintiff as the entire case is based on some unregistered “agreement to sale” which has no value in the eyes of law.

15. The defendants have relied upon K. S. Bhoopathy and Others v. Kokila and Others 2000 5 SCC 458 and V. Rajendran and Another v. Annasamy Pandian (dead) Through Legal Representatiaves Karthyanyani Natchiar 2017 5 SCC 63, Sun Pharma Laboratories Ltd. v. Hetero Healthcare Ltd. & Anr. in CS(COMM) 185/2022 dated 28.03.2022.

16. Learned counsel for the plaintiff submits that the plea taken by the respondent regarding the non maintainability of the suit is entirely frivolous and is liable to be dismissed. It has been submitted that the present suit is a comprehensive suit seeking declaration of title, possession, mesne profit, prohibitory and mandatory injunction with regard to the suit property and declaration of sale deed dated 17.03.2006 and 01.05.2014 as null and void. Learned counsel submits that Order XXIII is not applicable in the present case as the subject matter, cause of action and relief in the present suit are wholly distinct from the previous suit bearing CS(SCJ) No.1628/2021. Learned counsel submitted that if the order dated 10.01.2014 of the learned Court in CS (SCJ) No.1628/2021 is seen, it is amply clear that the submissions was made by the plaintiff No.1 and 2 to withdraw the suit with the liberty to file afresh.

17. Learned counsel submits that thus it was not a mechanical withdrawal and rather the same has been withdrawn with the permission to file a fresh suit. Learned counsel submitted that there are apparent differences in the relief prayed by the plaintiff in CS (SCJ) No.1628/2021 and the present suit. Learned counsel submitted that the relief claimed in the both the suits are totally different as well as the valuation was also different in both the suits. Learned counsel further submitted that as per the valuation of the plaintiff, the present suit falls only within the pecuniary jurisdiction of this Court. It has been submitted that the since the subject matter for both the suits are distinct in nature and therefore the provisions of Order XXIII will not be applicable.

18. Learned counsel has placed reliance upon Vallabh Das V. Dr. Madan Lal And Others 1970(1) SCC 761. Learned counsel submits that as held in Vallabh Das V. Dr. Madan Lal And Others (supra) only if the cause of action and relief claimed in the second suit is same as in the first suit it can be said that the subject matter of the second suit is the same as that in the previous suit. The reliance has also been placed on Anathula Sudhakar V. P. Buchi Reddy (dead) by Lrs. And Others 2008 4 SCC 594. Learned counsel submitted that in Anathula Sudhakar V. P. Buchi Reddy (dead) by Lrs. And Other (Supra) it were inter alia held that if the plaintiff is in possession but the title to the property is in dispute or under a cloud and that there is threat of dispossession, the plaintiff is required to file a suit for declaration of title and the consequential relief of injunction. However, if plaintiff is not in possession of the suit property or is not able to establish his possession and his title is also under cloud or in dispute, the plaintiff is required to file a suit for declaration, possession and injunction.

19. Learned counsel submitted that after certain documents were placed on record by the defendant No.3 by way of written statement, the plaintiff realised that “title” and “possession” requires adjudication. Learned counsel submits that therefore, the objection taken by the respondent regarding the maintainability of the suit is liable to be dismissed.

20. Before proceeding further, it is necessary to have a look of the relief claimed in both the suits.

21. The defendants have challenged the maintainability of the present suit primarily, in view of Order XXIII Rule 1 (3) of the CPC. Order XXIII Rule 1 (3) provides that the Court may grant the plaintiff permission to withdraw from such suit or such part of the claim, if the Court is satisfied that the suit must fail by reason or some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Order XXIII Rule 4 (b) CPC provides that if the plaintiff withdraws the suit or part of a claim without the permission referred to in sub-Rule 3, he shall be liable for such cost as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

22. There cannot be any doubt to the proposition that the plaintiff is dominus litis and he cannot be forced to proceed with the lis filed by him. However, at the same time, in order to bring certainty and to avoid filing of the frivolous litigation the legislature in its wisdom, has provided that the plaintiff can be granted permission to withdraw from such suit or such part of claim, only if the suit shall fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or a part of a claim with liberty to institute a fresh suit in respect of the subject suit or such part of the claim. In case such permission is not granted, the plaintiff is debarred from instituting any fresh suit in respect of such subject matter or such part of claim. Thus, reading of such order XXIII Rule 1 (3) and Order XXIII Rule 4 would make it clear that if the plaintiff has withdrawn the suit without liberty to institute a fresh suit he is debarred from instituting a fresh suit in respect of the subject matter of the earlier suit or such part of the claim.

23. In case K. S. Bhoopathy and Others V. Kokila and Others (supra), the Apex Court while dealing with the provisions under Order XXIII Rule 1 (3) CPC inter alia that the grant of the such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection.

24. Perusal of the record indicates that on 10.01.2024, the plaintiff made the following statement before the learned Trial Court;

25. The learned Trial Court after taking into account, the statement of the plaintiff, passed the following order;

26. The question now arises is that whether the order of the learned Trial Court whereby the permission was granted to the plaintiff to withdraw the suit would also include the liberty to institute the fresh suit.

27. In Chandrakant Pandurang Shingade and Another v. Walchand Gulabchand Bora and Another 2019 SCC Online Bom 1669, the Bombay High Court was confronted with an identical issue. In that case also though the permission was granted to withdraw the suit, however, there was no mention of liberty having been granted to institute fresh suit. It was inter alia held that inasmuch as the prayer for withdrawl and liberty to file fresh suit cannot be split up in two parts i.e. withdrawl and liberty to file the fresh suit, therefore, it has to be allowed as whole or rejected as a whole.

28. It is well settled proposition that if an application is made for withdrawl of the suit with liberty to file a fresh suit, it is not open for the Court to grant only permission for withdrawl without liberty to institute the proceedings, though it is open for the Court to reject such application. In the present case though no application seems to have been made but the plaintiff No.2 made specific statement on Oath before the Court seeking liberty to file the fresh suit.

29. The Calcutta High Court in Thadi Konda Veeraswami v. Thullum Peda Lakshmudu 1950 SCC OnLine Mad 331 inter alia held as under;

“1. The question involved in this civil revision petn. is very simple, namely, whether where a pltf. files a petn. to withdraw the suit with permission to file a fresh suit regarding the same subject-matter under Order 23, Rule 1 (2), С.Р.С., the Ct. has got the right to dismiss the petn. telling him that he might withdraw the suit if he wants but that it will not give him permission to file a fresh suit regarding the same subjectmatter. The lower Ct. is said to have dismissed the suit (o. S. No. 95 of 1944) later on, but we are not concerned in this civil revision petn. with this alleged later order of dismissal, which is not filed here, on a subsequent unconditional withdrawal or non-prosecution of the suit. I have absolutely no doubt that the lower Ct. had the right & jurisdiction to pass an order it did. The law regarding the withdrawal of a suit under Order 23, Rule 1, C.P.C. is well settled. Order 23, Rule I (1) gives the pltf. the liberty to withdraw from a suit unconditionally on finding it unsustainable, or for any other reason. No leave or order is necessary for this. See Lakshmanan v. Muthayya, 40 Mad LJ 126 & Mahant Biharidasji v. Parushotham, 32 Bom. 345 (10 Bom LR 293). The pltf. need not assign any reason for such an unconditional withdrawal. Order 23, Rule 1(2), C.P.C. contemplates a withdrawal from the suit with liberty to bring a fresh suit. Here the pltf. must ask for leave & must make out a case within Clause (a) or (b), the Ct. has no jurisdiction to allow such withdrawal with liberty unless the suit must fail by reason of some formal defect, under Clause (a) or unless there are "other sufficient grounds" for allowing the pltf, to institute a fresh suit regarding the same subject-matter under Clause (b). See Harskamukhi v. Sarat Chandra, (1927-28) 32 CWN 1244: (117 І. С. 864) & Rajkumar v. Ram Khelawan Singh, AIR 1922 Pat 44: (1 Pat 90, F.B.). An appln. to withdraw a suit with liberty to file a fresh suit regarding the same subject-matter must be either allowed or refused in toto. If liberty is refused, the suit should not be dismissed at once but retained for trial in the usual course. See Marudachala v. Chinna Muthu, 1931 MWN 1148 (AIR 1932 Mad 155). The Ct. cannot divide the petn. into two, & accept the withdrawal & refuse the liberty in the same order. It is bound to give the facts & reason when giving the liberty to file a fresh suit regarding the same subjectmatter. See Shamnandan v. Mulchand, 1 P. L. T. 292; (AIR 1921 Pat 360), Sukumar v. Chairman, Dist. Board of Gaya, AIR 1935 Pat 251: (155 І. С. 210) & Reazuddin v. Mirsajid Husain, AIR 1944 All 224 : (ILR 1944 All 396), Abdul v. Mohammed, AIR 1947 Mad 59: (229 1. C. 267) & Subhashini v. Ashutosh, 39 CLJ 731 (AIR 1924 Cal 751). "Other sufficient grounds" in Clause (b) has been interpreted to mean "grounds ejusdem generis to those mentioned in Clause (a)" or at least anologous to them. See Mahulla v. Hemangini Debi, 11 CLJ 512: (6 I. C. 629), Nagamma v. Lakshminarasu, AIR 1928 Mad 1085 (112 I.C. 312), Sukumar v. Chairman, D.B. Gaya, AIR 1935 Pat 251; (155 1. С. 210), & Ram Rao v. Appanna) AIR 1940 Bom 121 (ILR 1940 Bom 299 F.B.). In the present case, the petnr. the first pltf. had asked for permission to withdraw his suit, O. S. No. 95 of 1944, for possession of properties as the nearest reversioner to one Seshayya, whose widow Alivelu died on 30- 11-1941, against the alleged adopted son of Seshayya, the first deft. & others. The grounds alleged by him in this I. A. No. 1374 of 1945, for withdrawal with liberty, were that his vakil, Mr. P. Chalapati Rao, had taken a portion of his (petnr.'s) properties in advance in the name of his relative the second pitf. for conducting the suit, & had then filed a genealogical table which would not support the petnr's case & had also refused to amend the plaint & the genealogical table suitably. The first deft. had attacked the genealogical table as false & mythical, & had contested the petnr.'s claim to be the nearest reversioner, besides asserting the truth & validity of his own adoption. The suit was filed in 1944. This I. A was filed on 9- 11- 1945 after giving up his vakil & revoking his vakalat. On 9- 11-1945 itself the lower Ct. passed the order as below:

"The petnr. may withdraw the suit if he wants. This is not a case for which permission can be given to withdraw the suit with liberty to being a fresh suit, Petn. is dismissed."

This is the order covered by this revision petn. The later order dismissing the suit has not been filed in this civil revision petn. So the reason for dismissing the suit cannot be definitely ascertained. Nor arc we concerned with its correctness in this civil revision petn."

30. Similarly, Calcutta High Court in Sukumar Banerjee v. Dilip Kumar Sarkar 1981 SCC OnLine Cal 89, inter alia held as under;

“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. Shibendra reported in ILR (1908) 35 Cal 990 at p. 995, it has been stated that when the plaintiff files an application to withdraw from the suit with liberty to sue afresh, on which an order was passed on the same date giving permission to withdraw the suit and although nothing was said in that order as to the plaintiff's liberty to institute a fresh suit on the same cause of action, that order ought to be read along with the application, on which it was passed. It has already been indicated that that prayer was not refused. Hence it is held that that order has the effect of granting permission to the plaintiff with liberty to sue afresh on the same cause of action.”

31. The above judgments were followed by the High Court of Calcutta in Shyam Sundar Jalan v. R.K.P. Udyog Limited and Others 2023 SCC OnLine Cal 894, it was inter alia held that absence of express liberty in the order will not matter if there is a prayer for withdrawal of the suit of the petition for filing it before the appropriate forum.

32. The Supreme Court also, in Vimlesh Kumari Kulshrestha v. Sambhajirao and Anr. in Civil Appeal No. 2976 of 2004 inter alia held that even the presumption of implied grant can be drawn. The Apex Court placed reliance upon Mulla’s The Code of Civil Procedure, Seventeenth Edition Page 674, wherein inter alia it is mentioned that the permission mentioned in Order XXIII Rule 1 (3) need not be in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. The law seems to be now well settled that if permission has been sought for withdrawl of the suit seeking liberty to file a fresh suit and the Court has merely passed an order permitting the plaintiff to withdraw the suit, such an order can be construed as an order also granting liberty as prayed. The Court cannot be split the prayer made by the parties.

33. It is also pertinent to mention that the order granting permission to withdraw the suit has not been challenged by the defendants and thus has attained finality. The objection as to pecuniary jurisdiction is left open to be determined during the trial.

34. In these circumstances, in view of the above discussions, the objection taken by the defendant No.4 and 5 is not sustainable.

35. List the matter before the appropriate Bench on 08.08.2024 subject to the orders of the Acting Chief Justice.