The main legal point established in the judgment is that under Order XXIII Rule 1 CPC, a court should either fully allow or dismiss an application for withdrawal of a suit with liberty to file a fresh suit, and should not grant conditional relief.

Jayant Nath, J.

1. By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to impugn the order dated 30.01.2015 by which an application filed by the petitioner/plaintiff under Order XXIII Rule 1 CPC was partly allowed and the liberty was granted to the petitioner to file a fresh suit with respect to the relief of permanent injunction. The court held that there can be no occasion to consider the question of granting liberty with respect to any other reliefs as no such other reliefs have been sought in the present suit.

2. The petitioner/plaintiff who is the sister of the respondents filed the present suit against her two brothers in 2010. The title of the plaint stated is as “Suit for Cancellation of Title Documents of the property no. 4660-63, Gali no. 49, at Raiger Pura, Karol Bagh, New Delhi-5 and Permanent Injunction”. It was averred that the property was owned by the father of the parties, namely, Sh.Kishan Saroop who died on 27.08.1997. It was averred that the petitioner came to know that the respondents have forged certain documents and transferred the property in their name. It was claimed that the petitioner is the owner of 1/10th share of the property.

3. The respondents filed their written statement pointing out that the petitioner is aware of the fact that the father had left behind a registered Will dated 21.04.1997 and that she had furnished an affidavit of no objection to the DDA for mutation of the suit property in favour of five brothers including the respondents.

4. When the suit was at the stage of final arguments, the petitioner has moved the present application under Order XXIII Rule 1 CPC for permission to withdraw the suit with liberty to file a fresh suit. The only ground given for moving the application was that the petitioner ought to have filed a suit for partition and possession along with the relief of cancellation of documents and permanent injunction. This was not done by mistake.

5. The trial court by the impugned order as noted above, apart from imposing costs on the petitioner granted liberty only to file a fresh suit for injunction noting that the present suit was filed for permanent injunction and the said relief is a continuous cause of action. Regarding liberty to file a suit with respect to other reliefs, as no such reliefs have been pressed in the present suit, such liberty could not be granted.

6. I have heard the learned counsel for the parties.

7. Learned counsel for the respondents has vehemently argued that the petitioner despite having several adjournments could not lead any evidence and her right to lead evidence was closed. Subsequently, an application filed to recall the said order closing her evidence was also dismissed. He submits that in order to save the suit from the obvious fate which it would have met, the petitioner mischievously filed the present application. Hence, it is urged that no relief can be granted to the petitioner.

8. Order 23 Rule 1 (3) & (4) CPC reads as follows:-

“1. Withdrawal of suit or abandonment of part of claim.-

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(3) Where the court is satisfied,-

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

(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 institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

(4) Where the plaintiff,-

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.”

9. Hence, it is only where if the court is satisfied that a suit is likely to