“Withdrawal With Liberty To File Afresh Doesn't Permit New Reliefs": Bombay High Court Rejects Plaint

The Bombay High Court has held that where a plaintiff withdraws a suit with liberty to file a fresh suit on the same cause of action, he cannot seek additional reliefs in the subsequent suit unless specific liberty to claim such reliefs was obtained. The Court observed that omission to claim available reliefs in the earlier suit attracts the bar under Order II Rule 2 and Order XXIII Rule 1(4) of the CPC, rendering the subsequent suit not maintainable.Justice Shailesh P. Brahme was hearing a civil revision application filed by the defendants challenging the trial court's order refusing to reject the plaint under Order VII Rule 11 CPC in a subsequently filed suit. The dispute arose from a development agreement and subsequent sale deed executed in respect of 32 plots, where the plaintiff had initially filed a suit in 2022 seeking possession and, alternatively, recovery of money. The earlier suit was withdrawn with liberty to file a fresh suit on the same cause of action. Thereafter, the plaintiff instituted a fresh suit in 2023 seeking additional reliefs including specific performance, reconveyance, mandatory and perpetual injunctions, along with possession and monetary claims. The defendants contended that such additional reliefs were barred, as they were available at the time of filing the earlier suit but were not claimed.The Court noted that the trial court erred in doubting the similarity of the cause of action of both the suits. Since it is the plaintiff's case that a present suit has been filed on the same cause of action, plaint only inference possible is that suit is filed on same cause of action. The Court examined the pleadings of both suits and found that the cause of action in the subsequent suit was identical to that in the earlier suit, as asserted by the plaintiff himself. It noted that the additional reliefs sought in the subsequent suit, such as specific performance and injunctions, were available at the time of filing the earlier suit but were consciously omitted.The Court held that under Order II Rule 2(3) CPC, where a plaintiff is entitled to more than one relief on the same cause of action, omission to claim such reliefs without obtaining leave of the court precludes him from suing for those reliefs subsequently. The Court also rejected the trial court's view that evidence was required to examine the bar under Order II Rule 2, holding that the bar can be invoked at the stage of Order VII Rule 11.“… relief pertaining to specific performance of contract was available, but it was omitted in the earlier suit. In the subsequent suit the said relief with predominance comes to the fore. The plaintiff is precluded from filing a fresh suit in the absence of the permission of the Trial Court to institute fresh suit for the abandoned relief also,” the Court observed.Additionally, the Court found that the suit was ex facie barred by limitation, as the cause of action for specific performance arose in 2019 and the suit filed in 2023 was beyond the prescribed period. It held that withdrawal of the earlier suit does not extend limitation for the subsequent suit.Holding that the plaintiff had impermissibly expanded the scope of litigation in the subsequent suit without requisite liberty and had also instituted a time-barred claim, the Court found the suit to be not maintainable. Accordingly, the High Court allowed the revision application, set aside the trial court's order, and rejected the plaint in the subsequent suit.Case Title: M/s Lahoti Properties & Ors. v. Gangabhishan & Ors. [Civil Revision Application No. 61 of 2026]Citation: 2026 LiveLaw (Bom)153Click Here To Read/Download Order

“Withdrawal With Liberty To File Afresh Doesn't Permit New Reliefs": Bombay High Court Rejects Plaint

Saksham Vaishya

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