Page No.# 1/9 GAHC010279582025 2026:GAU-AS:9950 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/526/2025 SMT. NIBHA TALUKDAR AND 3 ORS. RESIDENT OF SOUTH SARANIA 1ST BYELANE (RIGHT) OPP. KASTURBA ASRAM, ULUBARI, GUWAHATI-781007, DISTRICT- KAMRUP METRO, P.O.- ULUBARI, ASSAM 2: SMT. ARATI TALUKDAR RESIDENT OF SOUTH SARANIA 1ST BYELANE (RIGHT) OPP. KASTURBA ASRAM ULUBARI GUWAHATI-781007 DISTRICT- KAMRUP METRO P.O.- ULUBARI ASSAM 3: SMT. HIRA MONI TALUKDAR RESIDENT OF SOUTH SARANIA 1ST BYELANE (RIGHT) OPP. KASTURBA ASRAM ULUBARI GUWAHATI-781007 DISTRICT- KAMRUP METRO P.O.- ULUBARI ASSAM 4: KASYAP MEDHI C/O- LATE BASANTA KUMAR TALUKDAR RESIDENT OF SOUTH SARANIA 1ST BYELANE (RIGHT) OPP. KASTURBA ASRAM ULUBARI GUWAHATI-781007 DISTRICT- KAMRUP METRO P.O.- ULUBARI ASSA VERSUS Page No.# 2/9 BIJOY TALUKDAR C/O- KALPANA BHARALI AND SIMANTA, RESIDENT OF WEST BORAGAON, NEAR MONI KANCHAN BIBAH BHAWAN, GAKHIR CHOWK, SANTINGAR PATH, GOHAI GAON FIELD, SUB- POST- DEBKATA NAGAR, PIN- 781011, P.S.- GORCHUK, DISTRICT- KAMRUP METRO, ASSAM Advocate for the Petitioner : MRS. HIRAMONI TALUKDAR ROYCHOUDHURY, Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 20.07.2026 Heard Ms. Hiramoni Talukdar Roychoudhury, the petitioner No. 3-in- person for all the petitioners. Also heard Mr. H.K. Sarma, learned counsel for the respondents. 2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the order dated 29.11.2025, passed by the learned Civil Judge (Junior Division) No. 5, Kamrup, Guwahati (‘trial Court’, for short), in Misc. (J) Case No. 331/2025, arising out of Title Suit No. 97/2025; and also prayed for dismissing the Title Suit No. 97/2025, as the learned trial Court had violated the provision of Order 23 Rule 1(4) CPC. 3. It is to be noted here that vide impugned order dated 29.11.2025, the learned trial Court had rejected the petition filed by the petitioner for rejection of suit. 4. Ms. Roychoudhury, the petitioner No. 3-in-person, for all the Page No.# 3/9 petitioners, submits that they are the owners of the suit property, bearing Dag No. 75, Patta No. 508, on the strength of the Will No. 367/2018, dated 06.12.2018, registered before the Registration Authority, by their Late father, namely, Basanta Kumar Talukdar and to grant probate of the said will, one T.S. (L.A.) No. 1/2024, is pending before the Court of learned Additional District Judge No. 2, Kamrup(M), Guwahati, wherein cross- examination of witnesses has already been completed and they have been possessing the same and paying municipal taxes, revenue taxes of the said property and they have also been spending lots of money for maintaining the same. She also submits that the respondent is a disowned son of Late Basanta Kumar Talukdar and he has no relation with his parents and other siblings for last 30 years, and that he resides at West Boragaon in his own property. 4.1. She further submits that in the year 2019, the respondent had filed one T.S. No. 23/2019, before the Court of learned Civil Judge (Junior Division) No. 1, Kamrup(M), Guwahati for injunction on the strength of family settlement. But, suddenly, the respondent had withdrawn the said title suit without any valid ground and without granting liberty to file a fresh one. But, subsequently, he filed a new suit, being Title Suit No. 97/2025, on the same subject matter, claiming same reliefs and also for injunction, on the basis of family settlement before the Court of learned Civil Judge (Junior Division) No. 5, Kamrup(M), Guwahati, and that the learned trial Court had admitted the same in contravention to Order 23 Rule 1(4) CPC, as the previous suit was withdrawn without granting liberty to file a fresh one. 4.2. She also submits that in the case of Ramalinga Bajanai Madam v. Page No.# 4/9 Gerart Pappammal And Ors., reported in 1998 (1) CTC 85, Madras High Court has held that withdrawing of a suit without permission of the Court to file a fresh one, bars the plaintiff from instituting any fresh suit, on the same subject matter or part of the claim and stressed the need for strict adherence to the rule. But, the learned trial Court, vide impugned order, dated 29.11.2025, had dismissed the said petition. 4.3. The impugned order, according to Ms. Roychoudhury, is illegal and also suffers from material irregularity and under such circumstances, she has contended to allow this petition by setting aside the impugned order dated 29.11.2025, and also to dismiss the suit. 5. Per contra, Mr. Sarma, learned counsel for the respondent has vehemently opposed the petition. He submits that the learned trial Court has rightly passed the impugned order dated 29.11.2025, and dismissed the petition filed under Order 7 Rule 11(d) CPC. Referring to the earlier plaint in Title Suit No. 23/2019, and also the plaint of Title Suit No. 97/2025, he submits that the subject matter in both the suits are different and also the cause of action of both the suits has arisen on two different dates, and the earlier suit, he had prayed for permanent injunction simpliciter and in the subsequent suit, he had sought for right, title and interest on the basis of bona fide family settlement dated 10.07.2012, also sought for and such settlement was engineered by his own father during his lifetime so that all the siblings can co-exist in a peaceful manner after his demise, and that the parties in earlier suit and the present suit are also different to some extent. 5.1. Mr. Sarma, also submits that the earlier suit was withdrawn while the Page No.# 5/9 prayer for amendment of the plaint made by the respondent herein as plaintiff, was rejected by the learned trial Court, vide order dated 07.02.2024, in Misc. (J) Case No. 179/2020. And the respondent herein then had approached this Court, challenging the order dated 07.02.2024, then vide order dated 15.05.2024, in CRP(IO) No. 155/2024, this Court had allowed him to file a fresh suit, if otherwise permissible under the law, and only thereafter, Title Suit No. 97/2025, was instituted. He further submits that the impugned order dated 29.11.2025, passed by the learned trial Court suffers from no infirmity, and therefore, it is contended to dismiss the petition. 6. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record, and also perused the plaints of Title Suit No. 23/2019 and Title Suit No. 97/2025, and also gone through the relevant provision under Order 23 Rule 1(4) CPC and the decision referred by Ms. Talukdar, the petitioner No. 3-in-person. 7. It appears that the Title Suit No. 23/2019, was withdrawn on 17.03.2025, and the learned trial Court, had allowed withdrawal of the said suit vide order dated 17.03.2025, without granting liberty to file a fresh one. However, it appears that before withdrawing the said suit, the respondent herein had filed one petition before the learned trial Court for amendment of the plaint. But, the same was dismissed, vide order dated 07.02.2024, in Misc. (J) Case No. 179/2020. The respondent then challenged the said order dated 07.02.2024, before this Court in CRP (IO) No. 155/2024. From a perusal of the order dated 15.05.2024, in CRP (IO) No. 155/2024, it appears that a Co-ordinate Bench of this Court had held Page No.# 6/9 that withdrawal of the said suit being Title Suit No. 23/2019, would not preclude the petitioner to file separate suit, if otherwise permissible under the law, and this fact was duly taken note of in the impugned order, dated 29.11.2025, by the learned trial Court. 8. It also appears that after hearing both the parties at length, the learned trial Court had recorded a finding that for the cause of action stated in the plaint, the plaintiff had claimed right, title and interest in the present suit, which were not claimed at the earlier suit, and perusal of both the plaints shows that the cause of action is completely different, and that the earlier suit was withdrawn and it was not heard and finally decided by the earlier Court, and cause of action, which has been provided in the plaint of the present suit, states that the plaintiff has claimed right, title and interest in the suit property along with mandatory injunction. But, in the previous suit, the plaintiff had prayed for only the perpetual injunction and both the plaints show that cause of actions are completely different, and thereafter, it had rejected the petition. 9. The contention of the petitioner appears to be centered around two points. Firstly, the subject matter of T.S. No. 23/2019, and the subsequent suit being Title Suit No. 97/2025, the relief(s) claimed in both the suits are also same and that being so the subsequent suit is barred by the principle of res-judicata. Secondly, while the earlier suit was withdrawn without liberty, the subsequent suit, being Title Suit No. 97/2025, is not maintainable in view of Order 23 Rule 1(4) CPC. 9.1. But, the issue of res-judicata is a mixed question of law and facts. The law with regard to deciding an application under Order VII Rule 11 CPC Page No.# 7/9 is well settled in catena of decisions of Hon’ble Supreme Court. In the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat, reported in(2021) 9 SCC 99, Hon’ble Supreme Court has laid down the guiding principle as under: - “25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows: 25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to. 25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application. 25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the “previous suit” is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit. 25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the “previous suit”,such a plea will be beyond the scope of Order 7 Rule 11( d ), where only the statements in the plaint Page No.# 8/9 will have to be perused.” 9.2. The aforesaid proposition is reaffirmed in subsequent decisions also. In the case of Keshav Sood v. Kirti Pradeep Sood, Civil Appeal No. 5841 of 2023, Hon’ble Supreme Court has held as under:- “6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits.” 9.3. Thus, it is well settled that adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the “previous suit”, and such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused. In that view of the matter, the issue cannot be decided in an application under Order 7 Rule 11(d) CPC. 9.4. Further, it appears that the cause of action, relief(s) claimed and to some extent parties in both the suit are visibly different. Besides, the earlier suit was withdrawn and it was not heard and finally decided by the Court on merits. The learned trial court had recorded a categorical finding in this regard. That being res judicata, cannot stand in the way of proceeding the subsequent suit. 9.5. Now, moving forward to the second point, this Court finds that earlier Page No.# 9/9 suit was withdrawn without liberty to a file fresh one. But, it appears that vide order dated 15.05.2024, in CRP (IO) No. 155/2024, a Co-ordinate Bench of this Court had held that withdrawal of the said suit being Title Suit No. 23/2019, would not preclude the petitioner to file separate suit, if otherwise permissible under the law. In view of above, this Court afraid the provision of Order 23 Rule 1(4) CPC, would not be applicable in this case. 10. Thus, the finding, so recorded by the learned trial Court, in the impugned order dated 29.11.2025, while examined in the light of the facts and circumstances on the record, and also in the light of the arguments advanced by learned counsel for both the parties, this Court is of the view that Ms. Roychoudhury, the petitioner No. 3-in-person for all the petitioners, has failed to demonstrate any illegality or irregularity, so committed by the learned trial Court in dismissing the petition for rejection of the plaint vide impugned order dated 29.11.2025. 11. This Court has also carefully considered the ratio laid down in the case referred by Ms. Roychoudhury, the petitioner No. 3-in-person for all the petitioners, and it appears that the said case proceeds on its own facts and clearly not applicable in the present case. 12. In the result, this Court finds no merit in this petition and accordingly, the same stands dismissed, leaving the parties to bear their own costs. JUDGE Comparing Assistant