The not the same as the rule


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provides that a second suit will not lie under sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court.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.

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