The court cannot prematurely permit the withdrawal of a suit with liberty to file a fresh suit when an application under Order 1 Rule 8 of the CPC is pending and needs to be disposed of.

1. This is a defendants revision petition against the order of the learned Subordinate Judge, Palampur, permitting the respondents to withdraw the suit filed by them with liberty to file a fresh suit.

2. The plaintiffs filed a representative suit for a declaration that they were owners in possession of the land in suit, enjoying several specific rights therein, and a sale deed dated July 13, 1973 executed by the second defendant was null and void and not binding on them. An application under O. 1, R. 8 of the Civil P.C. was filed along with the plaint. It appears that the trial Court omitted to dispose of the application and proceeded with the trial of the suit. When it had recorded the evidence and reached the stage of arguments, it was discovered that the application under O. 1, R. 8 has not been disposed of. The plaintiffs applied to the trial Court requesting it to dispose of that application. But before it could be disposed of, counsel for the plaintiffs made a statement expressing a desire to withdraw the suit on the ground that it contained a formal defect. The formal defect, it seems, was that permission under O. 1, R. 8 had not been granted. The trial Court made an order dated July 3, 1976 on the basis of the statement of counsel for the plaintiffs and dismissed the suit as withdrawn with permission to the plaintiffs to file a fresh suit on the same cause of action. The revision petition is directed against that order.

3. At the out set, it is urged for the respondents that the petitioner had agreed to the order prayed for by the respondents and therefore this revision petition should not be entertained. Now, Ground No. 5 in the revision petition does state :- "The learned Sub Judge merely on the statement of the parties wrongly allowed the withdrawal of the suit........." But for the petitioner it is stated that the petitioner never agreed to the order, and that when reference is made in the ground to "the statement of the parties" it is intended to (mean?) the statement made by counsel for the plaintiffs, and the expression "parties" was used in the plural because of the several plaintiffs in the suit. It is said that neither the petitioner nor his counsel ever made any statement before the trial Court agreeing, that the respondents should be allowed to withdraw the suit with permission to file a fresh suit. On going through the record of the trial Court, I am unable to find evidence of any such statement. The language in which the ground in the revision petition has been set out is also ambiguous, and could reasonably support the construction urged for the petitioner. The contention of the respondents is, therefore, rejected.

4. The question is whether the trial Court was right in permitting the plaintiffs to withdraw the suit with permission to file a fresh suit. The relevant provision in O. 23 of the Code provides for permission to a plaintiff to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit where the Court is satisfied "that a suit must fail by reason of some formal defect". Upon the facts of this case, it seems that it is premature to say that this condition is satisfied. The provision contemplates that the suit must fail, and I am of opinion that so long as the application under O. 1, R. 8 is pending, that cannot be said of the suit. The application was filed with the plaint, and it is the duty of the Court to dispose it of. The omission to do so can be remedied at any stage during the trial of the suit. Ordinarily, leave under O. 1, R. 8 should be sought and its grant considered when the suit is instituted. But the omission to obtain leave at the commencement of the suit cannot serve as a reason for dismissing the suit. No question of jurisdiction is involved. Leave can be granted at any stage after the suit has been filed. That was the view taken by a Full Beach of the Bombay High Court in Fernandez v. Rodriques, (1897) ILR 21 Bom 784 (FB), and