2025:HHC:15939 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 2 of 2025 Date of decision: 26.5.2025. Nand Kishore Gupta & another ...Petitioners. Versus Geeta ...Respondent Coram: The Hon’ble Mr. Justice Satyen Vaidya,Judge. Whether approved for reporting?1 For the petitioners: Mr. J.L. Bhardwaj, Sr. Advocate with Mr. Sarthak Upadhyay, Advocate. For the respondent : Mr. Vipin Pandit, Advocate. Satyen Vaidya, Judge (oral): The instant petition has been filed against the order dated 17.12.2024, passed by the learned District Judge, Solan in CMA No. 367-S/6 of 2023, in Civil Suit No. 71-S/1 of 2023, whereby the application of the respondent herein/plaintiff under Order 23 Rule 1 (3) of the Code of Civil Procedure has been allowed, thereby granting the permission to the plaintiff to withdraw the suit with liberty to file afresh on the same cause of action. 2. The facts of the case are that the above noted suit is second suit filed by plaintiff against defendants. The earlier 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- suit against the defendants is in respect of the same property which is subject matter of second suit and identical decree of mandatory injunction for restoration of the passage has been claimed in both the suits. In the second suit, another relief has beenclaimed in alternative to the effect that in case the plaintiff does not succeed in first relief, he may be granted the decree of Rs. 76,88,000/- on account of damages against the defendants. 3. The defendants have filed the written statement and have raised a specific objection that the suit is barred by the provisions of Order 2 Rule 2 of the CPC. The defendants have also filed an application under Order 7 Rule 11 of the CPC for rejection of plaint and one of the ground therein again is that the suit is barred by the provisions of Order 2 Rule 2 of the CPC. 4. While passing the impugned order, the learned District Judge, Solan though noticed the pendency of the application under Order 7 Rule 11 CPC filed by the defendants but without considering its implication, proceeded to pass the impugned order. 5. During the course of the hearing, learned counsel for the parties have agreed that it will be appropriate and in the fitness of things in case the impugned order is set aside and the matter is remanded back to the learned District Judge, Solan -3- with direction to decide the application of the plaintiff under Order 23 Rule (1) CPC afresh along with the application of the defendants under Order 7 Rule 11 CPC and also by taking into consideration the objection of the defendants as to bar of the suit under Order 2 Rule 2 CPC. 6. Accordingly, the petition is allowed. The order dated 17.12.2024, passed by the learned District Judge, Solan in CMA No. 367-S/6 of 2023, in Civil Suit No. 71-S/1 of 2023, is set aside. The matter is remanded back to the Court of learned District Judge, Solan for decision afresh, strictly in light of the observations made herein. 7. The petition is accordingly disposed of. Pending applications, if any, also stand disposed of. (Satyen Vaidya) 26th May, 2025 Judge (kck)