In a partition suit, withdrawal with leave to sue afresh should not be routinely allowed, considering the rights of defendants to seek partition and the public policy against repetitive litigation.

( 1 ) THE question involved in this revisional application is whether a partition suit should normally be allowed to be withdrawn with liberty to sue afresh when the plaintiffs alleged that the same suffers from the defect of non-joinder of necessary parties and non-description of the suit lands with particulars as to it's nature, character, boundaries, measurement and areas.

( 2 ) ORDER 23 Rule 1 (3) of the Code is clear in its terms that where a suit must fail by reasons of some formal defects or where 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, there the court may on such terms as it thinks fit permit the plaintiff to withdraw the suit or such part of claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. This rule is disctinct from res judicata and based on public policy of the law to avoid multiplicity of proceedings. This rule is meant to apply in cases where there is defect in form of the suit and because of such defect the suit will fait or where there are other sufficient grounds for allowing the plaintiff to institute a fresh suit.

( 3 ) IN the case in hand the formal defects and/or the other sufficient grounds pointed out by the plaintiffs for the purpose of withdrawal of the suit with a leave to file a fresh suit for the subject matter of the suit are that the description of the nature and character of the lands sought to be partitioned and the actual and correct areas and boundaries thereof were not furnished and necessary and proper parties have not been impleaded and there was misjoinder of cause of action.

( 4 ) THE Division Bench of this court in the case Haridas Sadhukhan v. Giridhar sadhukhan, held in a suit for declaration that certain properties were Debuttar properties and the plaintiff was the sole Shebait and the defendants should be restrained from obstructing the plaintiff in performing the Seba and making repairs to the temple also for recovery of possession of Debuttar properties and for accounts, that the defects referred to namely certain necessary parties were not impleaded and certain Debuttar properties were not included in the claim do not appear to be formal defects. It is not difficult to conceive that omission of a party simpliciter will not always result in dismissal of the suit unless such party is a necessary party. Again the question whether a party is a necessary party or a proper party requires adjudication on the principles established therefor. Similarly the properties that are not included in the suit will not fail the suit but the decision that will be rendered in the suit will not be applicable in those properties which were left out of the suit. Therefore, it is also a determining factor whether the defects in the suit are defects in the form of suit which will also result in dismissal of the suit, before permission is granted to withdraw the suit with leave to sue afresh for the selfsame subject matter of the suit. This is what this court laid down in the decision in the case of Rani Harsh mukti Dassi and Anr. v Sarat Chandra Ata the Single Bench of this court held that the court has no jurisdiction to permit withdrawal of the suit unless there was something to show that the suit must fail by reason of some formal defect.

( 5 ) BUT the Supreme Court in the decision of M/s. Hulas Rai v, KB. Buss and Co. held that the language of Order 23 Rule 1 Sub-Rule (1) of the Code gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-Rule (2) of that Rule. the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under Sub-rule (3) of that Rule. It also laid down that there is no provision in the Code of Civil procedure which requires the cou