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44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the courts discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.

46. In Mcllkenny v. Chief Constable of West Midlands Police Force1 the court of appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiffs earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel.

18. In the present case, though Defendant No.2 had raised a contention that the suit, particularly the relief relating to declaration of the sale deeds in favour of Defendant No.3 and Defendant No.2 were illegal and void was barred by limitation, the learned single Judge has not specifically rejected the suit on the ground of limitation, apparently on the footing that some factual aspect was required to be considered. At any rate, the learned counsel for Defendant No.2 / respondent has also stated that the present suit has not been dismissed on the ground of limitation and only on the bar under Order II Rule 2 and Order 23 Rule 1(4) of CPC and the doctrine of relitigation had been invoked. Therefore, the dismissal of the suit on the question of limitation does not strictly arise at the present. The decisions noticed above make it clear that the applicability of Order VII Rule 11 has to be decided on the basis of the averments made in the plaint itself and not on the basis of the plea of the defendants. However, while considering whether a suit is to be dismissed on the ground that it is an abuse of process of court or hit by the doctrine of "relitigation", obviously the court is not confined to the averments made in the plaint, but the court is required to look into undisputed surrounding circumstances to come to a conclusion whether filing of the suit is an abuse of process of court and hit by the doctrine of relitigation.

33. The question can now be examined from the point of view of relitigation. If the Will in favour of Plaintiff No.2 was legal and binding, on that basis, Plaintiff No.2, if he is in possession, can sue for permanent injunction against the entire world. If he is not in possession, he had a right to sue for recovery of possession. He had already filed a suit for injunction. Even at that stage of filing of the first suit in the year 1995, he was aware that Defendant Nos.4 to 14 were claiming right over the property and as a matter of fact he had impleaded all those persons in the probate proceedings initiated by him. Therefore, if he had deliberately omitted to include those defendants in the suit filed in the year 1995 as well as in the suit filed in the year 2000, he was required to pursue his remedy as available in law against all the persons who are required to be sued. The very fact that he has allowed the first suit to be withdrawn when the matter became ripe for hearing without taking to its logical end and similarly the second suit was withdrawn even after conclusion of the trial and when the matter was pending for judgment, are very relevant factors to consider whether his subsequent suit filed in the year 2007 is an abuse of process of court. In the very first suit he has obtained an injunction against the Accommodation Controller and withdrew the same on some pretext. Thereafter, after few days he again filed a similar suit for injunction against the very same Accommodation Controller. In such suit, Defendant No.2, who had already purchased the property from the rival claimants and thereby claiming absolute right for himself, has got himself impleaded. While hearing in such suit was concluded and the matter was reserved for judgment, he filed the present suit, obtained an injunction again against the Accommodation Controller only without seeking for injunction against the last purchaser, namely, Defendant No.2 or any other defendant and only after obtaining an ex-parte injunction, he got the earlier suit of 2000 dismissed as withdrawn. In these circumstances, the conclusion of the learned single Judge that the plaintiffs were trying to abuse the process of court appears to be fully justified keeping in view the further fact that in between, while all such controversies are pending, Plaintiff No.2 filed a proceeding under the Rent Control Act against his father, who is a co-plaintiff in all the suits seeking for eviction. In these circumstances, even assuming that, technically speaking, the bar under Order II Rule 2 was not applicable and similarly bar under Order XXIII Rule 1 CPC., was not applicable, at least the doctrine of relitigation was applicable.