ORDER 1. Since contesting respondent no.1/plaintiff is represented, matter is finally heard with consent. 2. Rejection of application under Order 23 rule 1(4) of the Code of Civil Procedure 1908 filed by the petitioner, a defendant in a partition suit by respondent No.1, by order dated 31.10.2012 is the cause for action in present writ petition under Article 227 of the Constitution of India. 3. The objection being that, earlier in 1977, the respondent/plaintiff filed a suit for partition in respect of very suit property, subject matter of the present suit and unconditionally withdrew the same. An order whereon was passed on 12.9.1977, brought on record as Annexure P-4. Evident it is from the order that the suit was withdrawn as compromise was arrived at between the parties. 4. Sub-rule (4) of Rule 1 of Order 23 CPC provides that :- (4) Where the plaintiff :- (a) abandons any suit or part of claim under sub-rule(1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule(3) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. 5. Thus unless the conditions as stipulated under Order 23 rule 1(4) is meted out a second suit for same cause is barred. (Though a suit for declaration for implementation of compromise which led to withdrawal of earlier suit may not). Since in the case at hand, the plaintiff sought the same relief as sought by her in earlier suit, the trial Court ought to have declined to entertain the second suit in the light of the provisions under Order 23 rule 1(4) of CPC.Thus there is jurisdictional error which has crept in the impugned order. Therefore, while setting aside the impugned order, the matter is remitted to the trial Court for fresh candidature of the application in question in the light of provisions contained under Order 23 rule 1(4) of the CPC. 6. Let a decision be taken within fifteen days from the date of communication of this order after giving an opportunity of hearing to the respective parties. 7. The petition is finally disposed of in the above terms. No costs. .............