@JUDGMENTTAG-ORDER
S. Palanivelu, J.@mdashThe petitioner is plaintiff in O.S. No. 344 of 2004, on the file of the District Munsif, Nilakottai, which is a suit on mortgage. Preliminary Decree was passed on 22.03.2006 and the petitioner filed an application to pass a final decree in I.A. No. 258 of 2006 under Order 34 Rule 5(3) and Section 151 of the Civil Procedure Code. On 13.09.2006, the learned counsel for the petitioner endorsed on the petition that he did not press the petition and hence the Court dismissed the petition as withdrawn. Subsequently, the petitioner filed another application in I.A. No. 403 of 2006 for passing of final decree under the above said provision. But the trial Court had dismissed the application by observing that since a similar petition was filed by the petitioner, not pressed by him and the same was dismissed by the Court as withdrawn, an identical petition for the same relief viz. to hypothetic is not maintainable. The said order is challenged before this Court.
2. Inspite of service of notice on the learned counsel for the respondent, there is no representation on the side of the respondent.
3. The learned counsel for the petitioner would submit that even if no liberty was granted to the petitioner when the previous petition was dismissed as withdrawn by the Court below, there is no obstacle for the petitioner to approach the Court again and the subsequent interlocutory application is not barred by res judicata. In support of his contention he relied upon an earlier decision of Division Bench of this Court reported in
4. It is well settled law that if an interlocutory application has been dismissed for non prosecution or dismissed as withdrawn when no merits have been discussed thereon, a subsequent petition for the same relief is not at all barred by law and no question of res judicata will arise.
5. The learned counsel for the petitioner has also garnered supported from the decision of this Court reported in 2005 MADRAS 2000, 457, in the case of Dalmia Cement (Bharat)Ltd. v. Uthandi alias Peria Uthandi, wherein it is held that even if a suit was dismissed as not pressed even before the service of summon on the defendants, the subsequent suit by the plaintiff could be entertained by the Court and the principles of res judicata have no operation.
6. In this case also, it is stated that the summons were not served on the respondents in the first application and even before the service on him the petition was not pressed.
7. Having regard to the above said circumstance, the order passed by the learned District Munsif Court, Nilakottai, is not sustainable in law and interference of this Court has become inevitable. The order of this Court below is set aside and the revision has to be allowed. In fine, the Civil Revision Petition is allowed directing the Court below to restore the I.A. No. 403 of 2006 and shall proceed with in accordance with law. Consequently, connected Miscellaneous petition is closed. No costs.
