2010(5) ALL MR 213
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.G. KARNIK, J.
Neeraj M. Gwalani Vs. Jenny Neeraj Gwalani
Writ Petition No.445 of 2010
7th June, 2010
Petitioner Counsel: Mr. R. T. LALWANI
Respondent Counsel: Mrs. T. F. IRANI
Civil P.C. (1908), O.23, R.1(3) - Withdrawal of suit - Right of plaintiff - Plaintiff has a right to withdraw his suit unconditionally at any time and no leave of Court is necessary if he wants to withdraw suit or abandon his claim unconditionally - However, if the plaintiff wants to file fresh suit in respect of same subject-matter, he is required to obtain a leave of the Court for withdrawal failing which fresh suit of the same subject matter would be barred.
The plaintiff has a right to withdraw his suit unconditionally at any time and no leave of the court is necessary if he wants to withdraw the suit or abandon his claim unconditionally. However, if the plaintiff wants to file the fresh suit in respect of the same subject-matter, he is required to obtain a leave of the court for withdrawal failing which fresh suit of the same subject matter would be barred. When the plaintiff applies to the court for withdrawal of the suit with permission to file fresh suit in respect of the same subject-matter, the Court has to consider whether there is any formal defect in the suit or whether there exists any other ground which Court considers to be sufficient to grant such permission. If the court is satisfied that none of the two exists, it has to reject the application. It cannot partially grant the application in a sense that it cannot simply dispose of the suit as withdrawn and reject his request for permission to file fresh suit on the same subject-matter. If the permission to file a fresh suit in respect of the same subject-matter is to be refused, the plaintiff may proceed with the suit with whatever defects that exist in the suit or make an application for curing those defects. By permitting the withdrawal of the suit and refusing the leave, plaintiff would be put to irreparable loss in as much as his suit would stand withdrawn without he having any remedy of filing a fresh suit. This obviously cannot be done. [Para 6]
JUDGMENT
JUDGMENT :- Rule. By consent, rule is made returnable forthwith.
2. By this petition, petitioner challenges the order dated 27th November, 2009 passed by the learned Judge of the Family Court at Bandra. Granting permission to the petitioner to withdraw his petition for divorce but rejecting leave to file a fresh petition on the same subject matter.
3. The petitioner and the respondent are husband and wife. Petitioner filed a petition, bearing MJ Petition A-462/08 for dissolution of marriage u/s.13(1)(ia) of the Hindu Marriage Act on 16th February, 2008. The petition was drafted and filed through an advocate. Subsequently, the petitioner changed his advocate. The new appointed advocate was of the view that the pleadings were insufficient and defective and advised the petitioner to withdraw the petition and file a fresh petition. Accordingly, petitioner filed an application to the Family Court under Order 23, Rule 1(3) of the Code of Civil Procedure for leave to withdraw the Marriage Petition with liberty to file a fresh petition in respect of the same subject matter. The application was opposed by the respondent.
4. By the order dated 27th November, 2009, the learned Judge of the Family Court allowed the petitioner to withdraw the Marriage Petition but declined the liberty to file a fresh petition in respect of the same subject matter. That order is impugned in this petition.
5. In my view, the order is clearly erroneous. Sub-rule (3) of Rule (1) of Order 23 of the Code of Civil Procedure provides that the Court may permit the plaintiff to withdraw a suit with liberty to institute a fresh suit in respect of the same subject-matter if it is satisfied that, (i) the suit must fail by reason of some formal defect, or (ii) there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of the claim.
6. Undoubtedly, the plaintiff has a right to withdraw his suit unconditionally at any time and no leave of the court is necessary if he wants to withdraw the suit or abandon his claim unconditionally. However, if the plaintiff wants to file the fresh suit in respect of the same subject-matter, he is required to obtain a leave of the court for withdrawal failing which fresh suit of the same subject matter would be barred. When the plaintiff applies to the court for withdrawal of the suit with permission to file fresh suit in respect of the same subject-matter, the Court has to consider whether there is any formal defect in the suit or whether there exists any other ground which Court considers to be sufficient to grant such permission. If the court is satisfied that none of the two exists, it has to reject the application. It cannot partially grant the application in a sense that it cannot simply dispose of the suit as withdrawn and reject his request for permission to file fresh suit on the same subject-matter. If the permission to file a fresh suit in respect of the same subject-matter is to be refused, the plaintiff may proceed with the suit with whatever defects that exist in the suit or make an application for curing those defects. By permitting the withdrawal of the suit and refusing the leave, plaintiff would be put to irreparable loss in as much as his suit would stand withdrawn without he having any remedy of filing a fresh suit. This obviously cannot be done.
7. In view of what is stated above, learned Judge of the Family Court clearly erred in allowing the petitioner to withdraw the petition but refusing the liberty to file a fresh petition. In the circumstances, Writ Petition is allowed, the impugned order is set aside and the matter is remanded to the trial court with a direction to decide the plaintiff's application afresh in accordance with law.