High Court Of Bombay Affirms That Withdrawal With Liberty Does Not Confer Right To Introduce Fresh Claims

The High Court of Bombay, by way of its judgment dated 24.03.2026 in M/s. Lahoti Properties & Ors. v. Gangabhishan & Ors.¹, has held that withdrawal of a suit with liberty to file afresh on the same cause of action does not permit the plaintiff to introduce new or additional reliefs in the subsequent suit, unless specific liberty to claim such reliefs was expressly granted by the court. Further, omission to claim available reliefs in the earlier suit attracts the bar under Order II Rule 2(3) and Order XXIII Rule 1(4) of CPC, thereby rendering the subsequent suit not maintainable. It was also held that such bar can be examined at the stage of Order VII Rule 11 of CPC without requiring a full-fledged trial.

In the present case, the maintainability of the subsequent suit was challenged, contending that the additional reliefs, though available at the time of the earlier suit, were deliberately omitted and could not be agitated subsequently in the absence of specific leave of the court.

The court observed that the cause of action in the subsequent suit was identical to that in the earlier suit and that the reliefs sought in the subsequent suit were available at the time of institution of the earlier suit but were consciously not claimed, thereby attracting the statutory bar under Order II Rule 2(3) of CPC. It was further observed that withdrawal of the earlier suit with liberty did not extend to permitting institution of a fresh suit for omitted reliefs in the absence of specific permission. In view thereof, it was held that the subsequent suit was not maintainable and accordingly allowed the revision application.

Footnote

1. Civil Revision Application No. 61 of 2026.

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