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Mrinal Mallik vs Jagannath Dey 31 Wa/14/2017 Gopi … on 7 December, 2018




FAM No. 118 of 2017

1. Mrinal Mallik S/o Gourchandra Mallik, Aged About 35
Years R/o Atal Awas Dharamjaigarh, Thana And Tahsil
Dharamjaigarh, Civil And Revenue District Raigarh,

—- Petitioner


1. Jagannath Dey

2. Smt. Meena Dey W/o Jagannath Dey

3. Arun Dey S/o Jagannath Dey,

All are R/o Sector-2, Timber Colony, Raurkela, District Sundergarh

—- Respondent

For Appellant Sunil Sahu, Advocate

Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Smt. Justice Vimla Singh Kapoor
Judgment On Board
Prashant Kumar Mishra J.


1. Learned counsel appearing for the appellant would seek

permission of the Court to withdraw this appeal with liberty to

move a fresh suit under the provisions of the Guardians and

Wards Act, 1890 seeking custody of the minor.

2. In Shiv Kumar Sharma v Santosh Kumari reported in

(2007) 8 SCC 600 the Supreme Court has held that a civil

Court does not grant leave to file another suit. In the said case

the following has been observed by the Supreme Court in

para 29 :

“29…..In any event, if a second suit was
maintainable in terms of Order 2 Rule 4
of the Code, as was submitted by Ms
Luthra, no leave was required to be
granted therefor. A civil court does not
grant leave to file another suit. If the law
permits, the plaintiff may file another suit
but not on the basis of observations made
by a superior court.

3. In view of the above, if the appellant intends to file another

suit, which is otherwise maintainable, no leave of the Court is


4. Accordingly, the appellant is permitted to withdraw this

appeal subject, however, to the observations as stated supra.

Sd/- Sd/-
Judge Judge
Prashant Kumar Mishra Vimla Singh Kapoor


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