IMPORTANT POINT
The court established that the discretion to permit withdrawal of a suit under Order 23 Rule 1 (3) CPC requires timely action and sufficient grounds, and that the presence of formal defects must be substantiated with diligence.

ORDER :

(Sanjay Kumar Medhi, J.) :

1. Heard Shri M.K. Sharma, learned counsel for the petitioner, who has filed the instant petition under Article 227 of the Constitution of India against an order dated 03.08.2022 passed by the learned Munsiff No. 1., Goalpara whereby a petition filed under Order 23 Rule 1 (3) of the CPC in Title Suit No. 25/2018 has been rejected. I have also heard Ms. K. Phukan, the learned Government Advocate.

2. The petitioner, as the plaintiff had instituted the aforesaid suit for declaration of right, title, interest and recovery of a possession pertaining to a plot of land. The suit was contested by the private respondent whereas it proceeded ex-parte against the State respondents. It is also the admitted case that the plaintiff’s evidence through three witnesses were given by way of affidavit and PW1 was also cross examined. However, at that stage, the application under Order 23 Rule 1 CPC was filed for withdrawal of the suit with liberty to institute a fresh suit.

3. Shri Sharma, the learned counsel for the petitioner by referring to the said petition filed under Order 23 Rule 1 (3) CPC has submitted that in paragraph-2 thereof, a formal defect was pointed out and in paragraph-3, a specific plea was taken on the ambiguity in the description of a part of the suit land. It is further submitted that though an observation has been made in the impugned order that the new set of counsel had entered appearance by filing Vakalatnama on 20.12.2019 and the amendment was sought for only on 11.02.2021, the learned counsel has submitted that in between, there were only four dates whereafter due to the Covid pandemic, there were no effective sittings and therefore, it cannot be said that there was inordinate delay. It is further submitted that in paragraph-3 of the plaint while stating the description, certain details were left out which can be termed to be formal defects.

4. Shri Sharma, the learned counsel accordingly submits that the order dated 03.08.2022 is liable to be interfered with.

5. Per contra, Ms. K. Phukan, learned State Counsel appearing for the respondent nos. 3 & 4 has submitted that an affidavit-in-opposition has been filed on 27.06.2023 and in paragraph 4 thereof, a specific objection has been raised that the plaintiff witnesses have already filed their chief examination and the PW1 has already been cross examined. It is accordingly submitted that, if at this stage, the suit is allowed to be withdrawn with a liberty, that will amount to giving a scope to fill in the lacuna whereby prejudice would be caused to the contesting defendants.

6. Rejoining his submissions, Shri Sharma, the learned counsel for the petitioner has submitted that the stand taken by the learned Government Advocate may not be relevant as no relief has been sought for from the Government and in any case, the suit had proceeded ex-parte against the Government.

7. The rival submissions made by the learned counsel for the parties have been duly considered and the materials placed before this Court have been duly examined.

Order 23 Rule 1 (3) CPC reads as follows:

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

(1)…

(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)…”

8. While Order 23 Rule 1 CPC provides for taking leave of the Court to withdraw a suit or any part thereof, Rule 3 is the provision under which a permission to withdraw may be granted with a liberty to institute a fresh suit. The said Rule 3 has laid down two ingredients which are disjunctive as would be clear by use of the expression “or”. Th