A court's permission to withdraw a suit must be interpreted as granting the plaintiff the right to file a fresh suit on the same cause, despite not being explicitly stated.

JUDGMENT :

Ramesh Chand Malviya, J.

Heard learned counsel on behalf of petitioner and learned counsel for the respondents.

2. The present Civil revision has been filed against the order dated 22.12.2012 passed by learned Sub- Judge-VIII, Siwan in T.S. No. 340 of 1985 whereby and where under he has pleased to allow the petition dated 09.03.2005 filed by the defendant no. 32 and suit was disposed of.

3. Learned counsel for the petitioner submits that after summons in the Title suit, defendants had appeared and filed their respective written statement at the stage where the suit was admitted. Further defendant no. 32 filed a petition under Section 10 of the CPC for maintainability of the suit on 29.11.2004 and on 03.03.2005. He further submitted that earlier petitioner filed an earlier suit bearing no. 160 of 1979 which was withdrawn with the permission of the Court and liberty was given to the petitioner to file fresh suit with the cost of Rs. 232/-. He further submitted that the permission need not be in express terms as it is clear from the records that petitioner was permitted to withdraw the suit and permission was granted to file a fresh suit vide order dated 16.07.1984. He further submitted that learned trial Court erred in allowing the defendant no. 32 application and disposing the suit without applying his judicial mind.

4. Learned counsel for the respondents submits that petitioner filed a Title Suit No. 160 of 1979 before Sub- Judge, Siwan and subsequently the said suit was withdrawn by the petitioner but permission to file a fresh suit was not granted. He further submitted that on the basis of law laid down by several judicial pronouncement, order dated 22.12.2012 passed by learned Sub-Judge-VIII, Siwan is perfectly correct and therefore the present civil revision is fit to be dismissed.

5. On perusal of materials available on record and relief portion of the application dated 16.07.1985 under Order 23 Rule 1 of the CPC for withdrawal of the Title Suit No.160 of 1979 which is as follows:

^^blfy;s fuosnu gS fd eqnbZ dks eksdnek mBk ysus ds fy;s vkns'k fn;k tk; vkSj pwads cklnos flag eqnbZ dks /kks[kk nsdj xyr cVokjk dk eksdnek nk;j djk fn;k gSA blsfy;s [kpkZ ls cjh fd;k tk; oks eqnbZ dks ml tk;nkn ds fulor nwljk eksdnek nk;j djus ds fy;s ,tktr fn;k tk;A^^

It is evident to note that to withdraw the suit under Order 23 Rule 1 of the CPC with liberty to institute a fresh suit on the same subject matter has got to be treated as an indivisible whole and the Court cannot split up the prayer while refusing permission to institute a fresh suit and that it could not treat the application to be one under Order 23 Rule 1 of the Code for withdrawal of the suit simpliciter and, as such, the order allowing the application without expressly granting or refusing permission to institute a fresh suit is to be taken to have been passed granting the composite prayer made in the application under Order 23 Rule 1 of the Code, under which an order either allowing the application in toto or rejecting it in toto, could alone be legally passed by the Court. Therefore, when an application moved under Order 23 Rule 1 is allowed there is no escape from the conclusion that the prayer made in the application has been allowed in toto although no specific order is passed granting permission to institute fresh suit in respect of same subject matter and on the same cause of action.

6. Order XXIII Rule 1(3) CPC lays down following grounds on which a Court may allow withdrawal of suit. It reads as under:

"Rule. 1. Withdrawal of suit or abandonment of part of claim.-

(3) Where the Court is satisfied.-

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

(