Withdrawal of a suit is permissible under sufficient grounds as per Order XXIII Rule 1(3) of the Code, not limited to formal defects.

JUDGMENT :

Devashis Baruah, J.

Heard Mr. S. P. Roy, the learned counsel appearing on behalf of the Petitioners and Ms. S. Dasgupta, the learned counsel appearing on behalf of the Respondent Nos. 1.1 and 1.4.

2. This is an application filed under the Article 227 of the Constitution challenging the order dated 21.02.2014 whereby the applications filed by the petitioners who were the plaintiffs for withdrawal of the suit with liberty to re-file was rejected.

3. From a perusal of the materials on record, it is seen that the petitioners herein as plaintiffs initially had instituted a suit being Title Suit No. 266/07 seeking partition as well as other consequential reliefs in respect to the properties described in the schedule to the plaint. Pursuant thereto, the defendants filed their written statement wherein they had stated that the partition had already taken place and the suit properties belonged to them. Subsequent thereto, in the year 2013, the defendants filed an application under Order VI Rule 17 Code of the Civil Procedure, 1908 (for short ‘the Code’) whereby they wanted to incorporate certain amendments to the written statement to the effect that they have been issued separate pattas. The plaintiffs filed their written objection to the said application under Order VI Rule 17 of the Code which is still pending.

4. It is further seen from the materials on record that taking into account that the Revenue Authorities have already partitioned the land and issued separate pattas to the defendants as could be discerned from the application filed under Order VI Rule 17 of the Code for amendment of the written statement, the plaintiffs upon being advised that a composite suit would be required to be filed for seeking partition as well as challenging the pattas which have been issued in favour of the defendants, the petitioners as plaintiffs filed an application being Petition No.4414/2013 on 29.08.2013 for withdrawal of the suit with the liberty to re-file.

5. To the said application, the defendants objected by filing their written objection. The learned Trial Court vide the order dated 21.02.2014 dismissed the said application seeking withdrawal of the suit with liberty to re-file. It is under such circumstances, the present application has been filed before this Court challenging the order dated 21.02.2014.

6. Mr. S. P. Roy, the learned counsel appearing on behalf of the petitioners submitted that the learned Trial Court failed to take into account that in view of the issuance of the separate pattas during the pendency of the suit sometime in the year 2010, as reflected in the application seeking amendment of the statement, it would require a composite suit seeking partition as well as challenging the pattas so issued. The learned counsel further submitted that the learned Trial Court completely erred in law by failing to take into account that the provisions of Order XXIII Rule 1(3) of the Code is not only in respect of allowing withdrawal for formal defects but also for other sufficient grounds. He submitted that as the suit presently would not serve the purpose of the plaintiffs in view of the issuance of a separate patta by the Revenue Authorities in favour of the defendants, it constituted a sufficient ground in terms with Order XXIII Rule 1(3) of the Code for which the application so filed for withdrawal of the suit with liberty ought to have been allowed.

7. Ms. S. Dasgupta, the learned counsel for the respondent Nos. 1.1 and 1.4 submitted that the plaintiffs had due knowledge that there was a partition and the plaintiffs remained quiet for all these 6 (six) years after the filing of the written statement and as such, the learned Trial Court was justified in not allowing the plaintiffs to withdraw th