Mansil v. Devaya – sllr 1985 volume 2 page 046

In the case between Mansil and Devaya, the court addressed the issue of whether the subject matter of the plaintiff’s present rei vindicatio suit was the same as the subject matter in a previously withdrawn possessory suit, and whether the withdrawal without reservation required the plaintiff to obtain court permission under section 406 of the Civil Procedure Code before instituting a new action. It was held that the burden to prove the identity of subject matter rested upon the defendant and that the trial judge had erred in the application of section 406. The principle was reaffirmed that a new action is not barred when the defendant does not discharge the burden of establishing that both suits concerned the same subject matter, especially when prior pleadings and issues were not produce