C.R.P. No.2769 of 2008

8th September, 2008

Petitioner Counsel: D. KODANDARAMI REDDY
Respondent Counsel: V. R. REDDY KOVVURI

JUDGMENT

-This revision petition is directed against the order dated 23.6.2008 in IA No.304 of 2008 in OS No.25 of 2007 on the file of the Court of the IV-Additional Junior Civil Judge, Kadapa.

2. The revision petitioner is the plaintiff who filed the suit for permanent injunction restraining the defendants/respondents herein from interfering with the suit schedule property. The defendants contested the suit and on the basis of the pleadings issues were settled. Both the parties let in evidence in support of their respective claims. However, after the closure of the evidence, at the instance of the plaintiff the trial was reopened for examining PW.4. At that stage, the plaintiff filed IA No.304 of 2008 under Order 23, Rule 1(3) of C.P.C. seeking permission to withdraw the suit with liberty to file a fresh suit in respect of the same subject-matter on the ground that there was a formal defect in the suit and therefore he was advised by his Counsel to file a fresh suit. The said application was opposed by the defendants/respondents herein and the Court below by order dated 23.6.2008 dismissed the application. Challenging the said order dated 23.6.2008, the present civil revision petition is filed by the plaintiff.

3. I have heard the learned Counsel for both the parties and perused the material on record.

4. Order 23, Rule 1 of C.P.C. which provides for withdrawal of suit or abandonment of part of claim runs as under :

"1. Withdrawal of suit or abandonment of part of claim-(1) At any time after the institution of suit, the plaintiff may as against all of any of the defendants abandon his suit of abandon a part of his claim :

PROVIDED that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 4, 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(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) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

1A. When transposition of defendants as plaintiffs may be permitted :-Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."

5. On a reading of the above provision, it is clear that under sub-rule (1) of Rule 1, it is open to the plaintiff to abandon the suit or abandon a part of his claim at any time after the institution of a suit against all or any of the defendants. However, if the plaintiff intends such withdrawal with liberty to institute a fresh suit in respect of the same subject-matter, the permission of the Court under sub-rule (3) of Rule 1 of Order 23 is necessary. The language of sub-rule (3) of Rule 1 shows that such permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject-matter can be granted only where the Court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. It is also relevant to note that sub-rule (4) of Rule 1 of Order 23 of C.P.C. made it clear that in case the suit is withdrawn by the plaintiff without the permission by the Court to institute a fresh suit, the plaintiff shall be precluded from instituting any fresh suit in respect of the same subject-matter.

6. On a combined reading of all the aforesaid provisions, it is apparent that unless the suit is withdrawn with the permission of the Court to institute a fresh suit in respect of the same subject-matter, a fresh suit is barred. In other words, the permission to withdraw with liberty to institute a fresh suit granted under sub-rule (3) of Rule 1 removes the bar of res judicata which would otherwise apply if a fresh suit on the same cause of action is brought.

7. In the case on hand, such permission to withdraw the suit with liberty to file a fresh suit in respect of the same subject-matter was sought by the plaintiff on the ground that there was a formal defect in the suit. However, what is that formal defect has not been specified nor explained.

8. The expression 'Formal Defect' in the normal parlance connotes defects of various kinds not affecting the merits of the case. Thus, a formal defect is 'a defect of form' unrelated to the claim of the plaintiff on merits.

9. It is also relevant to note that under Order 23, Rule 1(3) of C.P.C. for granting permission to institute a fresh suit on the same cause of action the satisfaction of the Court that the suit must fail by reason of some formal defect is mandatory. Hence, it is essential for the plaintiff while seeking leave of the Court under Order 23, Rule 1(3) of C.P.C. to establish that the formal defects in the suit are likely to lead to dismissal of his suit. Thereupon if the Court is satisfied that the suit must fail by reason of such formal defects then only the plaintiff can be permitted to withdraw his suit with liberty to file a subsequent suit in respect of the same subject-matter.

10. In the circumstances, the mere repetition of the expression 'formal defect' is not sufficient to grant the permission as contemplated under sub-rule (3) of Rule 23(1). What is the formal defect, according to the plaintiff, must be specified and if the Court is satisfied that the suit must fail by reason of such formal defect the leave can be granted pointing out such formal defect.

11. Since admittedly the plaintiff in the instant case failed to specify the so-called formal defect, the Court below was unable to record its satisfaction that the suit would fail by reason of the formal defect. Therefore, the Court below was justified in dismissing the petitioner's application under Order 23, Rule 1(3) of C.P.C..

12. It is also relevant to note that the defendants while opposing the application specifically alleged that there are number of admissions in the cross-examination of the witnesses on behalf of the plaintiff and therefore the plaintiff intended to get over the said admissions by withdrawing the suit.

13. Be that as it may, as already expressed above, since the plaintiff could not specify the formal defect which is likely to lead to dismissal of his suit nor any other sufficient grounds are made out for permitting him to institute a fresh suit in respect of the same subject-matter, the Court below has rightly declined to grant leave under Order 23, Rule 1(3) of CPC..

14. For the aforesaid reasons, the order under revision which does not suffer from any legal infirmity warrants no interference by this Court.

15. The civil revision petition is accordingly dismissed. No costs.

Petition dismissed.