IMPORTANT POINT
The court established that withdrawal of a suit under Order XXIII Rule 1 requires the court to be satisfied with the grounds for allowing a fresh suit on the same cause of action.

ORDER :

1. The Civil Revision Petition is filed under Article 227 of the Constitution of India, challenging the order dated 07.12.2018 in I.A. No. 640 of 2018 in O.S. No. 69 of 2012 on the file of the Principal Senior Civil Judge, Chittoor.

2. The respondent/plaintiff filed an application under Order XXIII Rule 1 (3) of the Code of Civil Procedure, seeking permission of the Court to withdraw the suit, stating that the averments of the plaint could not be drafted as per his instructions and, that the schedule of the properties was also not properly incorporated. And that various documents which the plaintiff was relying on were also not referred to in the plaint and that any number of amendments/corrections to the plaint would rectify the defects in the suit. He, therefore, sought the liberty of the court to withdraw the suit and permit him to file the suit afresh based on the same cause of action.

3. The learned trial Judge relying on the decision of the Hon’ble Supreme Court of India in the case of Anathula Sudhakar vs. P. Buchi Reddy, AIR 2008 SC 2003 wherein it is observed as under:

“the suit schedule properties are not in the possession of the plaintiff and they are in the possession of the defendants. Hence, it can be said that this suit filed with the reliefs for recovery of possession and perpetual injunction per se is not maintainable.”

Allowed the petition permitting the plaintiff to withdraw the suit, granting liberty to the respondent/plaintiff to file a comprehensive suit afresh for declaration of title, recovery of possession and consequential relief of injunction against the defendants on the same cause of action, on the basis of which the suit was filed. Assailing the same the present Civil Revision Petition.

4. Heard Sri K.V.L. Narasimha Rao, learned counsel for the petitioner.

5. The learned counsel for the petitioner contends that the learned Judge has erred in granting liberty to the respondent/plaintiff to file the suit afresh on the same cause of action, which, by efflux of time, has become time-barred. It is further contended that the so called in diligent act of the counsel for the plaintiff would not constitute a valid reason for the plaintiff to ask for withdrawal of the suit and file the same afresh, as per his convenience. And further contended that if the said advocate who has set the pleadings in the plaint was not prudent enough as contended, an action against the said advocate could have been initiated. In the absence of the same, it is contended that the claim of the plaintiff to seek withdrawal of the suit and liberty to file the suit afresh is not a bona-fide claim, which the learned judge ought not to have allowed.

6. Considered the submissions perused the record. The provisions of Order XXIII Rule 1 of CPC reads as under:

“ORDER XXIII - WITHDRAWAL AND ADJUSTMENT OF SUITS

1. Withdrawal of suit or abandonment of part of claim:

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or 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 14 of Order XXXII 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 persons.

(3) Where the Court is satisfied:

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

(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 in