Permission to withdraw the suit with liberty to file a fresh suit can only be granted if the suit may not fail by reason of some formal defect or if there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action.

V.K. Gupta, C.J.

1. Vide the impugned order dated 19th July, 2006, the learned Civil Judge (Junior Division) Court No. 2, Kasauli, District Solan has rejected the Application of the petitioners filed under Order 23 Rule 1(3) of the Code of Civil Procedure for permission to withdraw the pending suit with liberty to file a fresh suit on the same cause of action. Sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure reads thus:

(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.

2. By now it is a settled proposition of law that permission to withdraw the suit with liberty to file a fresh suit can be granted to a plaintiff only if one of the two situations or contingencies exist, or are made out, viz. that the suit may not fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action. The existence of both these grounds or even one of them, of course is subject to the satisfaction of the trial Court.

3. I have carefully gone through the impugned order as well as the contents of the Application filed by the petitioners for permission to withdraw the suit and find that in so far as the first ground is concerned surely it cannot be said that the suit as instituted suffered from any formal defect. On the own showing of the petitioners the suit as instituted suffered from vital and grave defects of substance, actually very, very vital defects of substance and by no stretch of imagination could any of these be called as "formal defects". The learned trial Court has correctly held and with elaborate reference to the contents of the Application and the material on record that the Application filed for granting permission to withdraw the suit was also very vague. I have myself gone through the copy of the Application and fully agree with this opinion of the learned trial Court.

4. The petitioners filed the suit originally in the year 1986 and in the year 1997 for the first time obtained permission from the Court under Order 23 Rule 1(3) of the Code of Civil Procedure for filing a fresh suit on the same cause of action which actually was filed afresh in the year 2000. The main ground for filing the latest Application for permission to withdraw the suit was that some Urdu language record had been traced and that the perusal of this record revealed, inter alia that certain persons whose names had been mentioned in the suit and whose parentage was not known are parties and that these persons are no longer alive. The Application further states that certain "transfers" have taken place during the pendency of the present suit and the said "sales" are also to be challenged by the petitioners. It also avers that some new "facets" have emerged which are required to be incorporated etc. etc. The petitioners in the Application did not at all state any material fact or any material particular as to who were the persons who had died or which were the "transfers" which had taken place during the pendency of the suit and as to what are the "facets" which have now emerged which are required to be incorporated in the new suit proposed to be filed.

5. It may also be worthwhile to take note of the fact that in the same suit, an Application for amendment of the plaint was filed by the petitioners in the trial Court which was rejected by the learned trial Court. The rejection order was challenged in this Court by filing CMPMO No. 211 of 2005. On 5th October, 2005 in the said petition, this Court passed the following order:

Mr. Kaushal submits