The court emphasized that permission to withdraw a suit with liberty to file a fresh suit can only be granted when the suit is going to fail by reason of some formal defect or for other sufficient reasons, as defined in relevant case law.

( 1 ) THE short question that arises for consideration in this revision petition is whether the court below was justified in granting permission to the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action.

( 2 ) THE plaintiff filed O. S. No. 425/64 on the file of the Munsiff, Chickballapur. The entire evidence in the suit was closed by 17-7-1967 and arguments were also heard in part on 24-7-67. At that stage, an application for amendment of the plaint was filed. That application was rejected and a revision petiton CRP. 1623/67 was filed before this Court. This court held that the order declining to grant the amendment was one within the jurisdiction of the court below and hence could not be interfered with. After the dismissal of the revision petition by this Court, the plaintiff filed I. A. 10 under Order 23. Rule 1 read with Section 151 of the cpc. stating that regarding adoption, due to some mistake and inadvertence, the time, manner of adoption, custom and other details were not pleaded, that it was a defect in the plaint on account of which he was precluded from leading evidence and that therefore, liberty should be given to him to withdraw the suit. Defendant 1 resisted that application and submitted to the Court that the grant of permission at that stage to withdraw the suit should not be given, that the only desire of the plaintiff in withdrawing the suit was to harass the defendant and that, therefore, the application should be rejected.

( 3 ) THE learned Munsiff was of the view that the ground upon which the withdrawal of the suit was sought was that there is a formal defect in the plaint and that formal defect consists in not specifically pleading all facts relating to the adoption of the plaintiff. He therefore, held as under:"upon a perusal oi the plaint, it is clear that what the plaintiff ultimately claims is a partition of the suit schedule properties on the ground of his alleged adoption by the first defendant and also on some other grounds. This fact, it is clear has not been properly pleaded in the plaint. It is true that the plaintiff has come with this application at a stage when the suit is posted for arguments, but that need not deter the court from considering the application on merits. Since the failure to specifically plead necessary facts regarding the alleged adoption as also the failure to plead the grounds upon which the plaintiff is entitled to the relief are to be considered sufficient grounds within the meaning of Or. 23, Rule 2 (c), I am of opinion that necessary permission to withdraw the suit has to be granted to the plaintiff. . . . "

( 4 ) IT is this order that is challenged now before this Court. The learned Advocate for the petitioner contended that the Court below had overlooked the principles governing the grant of permission for withdrawing a suit with liberty to file a fresh suit, that it can be granted bnly when the court is satisfied that the suit is going to fail by reason of some formal defect or for other sufficient reasons. It was urged that the order of the court below does not disclose that there was either a formal defect or there are other sufficient reasons enabling it to grant permission to withdraw the suit. In support of this submission, he relied upon several decisions of courts, first of which is reported in Jumma v. Ram Sahai, AIR 1934 All. 137. In that case, the Court followed the earlier julgrnent of sir Henry Richards, C. J. , which is to the following effect: :-"i consider that a court ought to be very slow to give liberty to bring a fresh suit after a case has been heard out on the merits. . . I do not think that it ever was intended that a plaintiff should have the power of trying out his case and then at the last moment asking for leave to withdraw with permission to bring a fresh suit. The mere ordering of the plaintiff to pay the defendant's costs does not compensate the latter for being sued a second time. "

( 5 ) THE C

Click Here to Read the rest of this document