The main legal point established in the judgment is that the provisions of Order 23, Rule 1(3) of the CPC allow plaintiffs to withdraw a suit and institute a fresh suit for formal defects, and the provisions of Order 2, Rule 2 do not create an absolute bar on the plaintiffs from doing so.

Sureshwar Thakur, J.

1. The plaintiffs had instituted a suit against the defendant/petitioner herein claiming therein a decree for declaration besides a decree for injunction with respect to the suit property. The suit was contested by defendant No. 1/petitioner herein by his instituting a written statement thereto. However, during the pendency of the suit, an application cast under the provisions of Order-23, Rule 1(3) of the Code of Civil Procedure (hereinafter referred to as the CPC), was filed by the plaintiffs before the learned trial Court. The relevant portions of the apposite application, comprised in paragraphs No. 3 and 7 thereof are extracted hereinafter:-

“3. That the written statement was filed and it came to the notice of the plaintiffs/applicants that in the suit, court fees has been insufficiently affixed and the proper facts of fraud have also not been narrated especially with regard to the illiteracy of the plaintiff and execution of sale deed under the garb of mortgage deed.

7. That there was a bona-fide error in claiming proper relief of suit land because there was void transaction under the impression of mortgaging the land.”

Therein the plaintiffs sought permission of the learned trial Court, to withdraw civil suit No. 78 of 2014, with liberty being granted to them to institute a fresh suit. The application “stood” under its impugned order rendered on 31.10.2015, hence, “allowed” by the learned trial Court. The petitioner herein/defendant No. 1 is aggrieved by the impugned order, hence, for begetting its reversal, he has instituted the instant petition before this Court.

2. The learned counsel appearing for the petitioner/defendant No. 1, has contended with vigour that the impugned order is gripped with a critical legal infirmity, comprised in the fact of the learned trial Court, though proceeding “to” within the domain of sub-rule (3), Rule 1 of Order 23 of the CPC, provisions whereof stand extracted herein, hence, pronounce the impugned verdict, “whereas” none of the ingredients contained therein being evidently satiated. The provisions of Order 23, Rule 1(3) of the CPC reads as under:-

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

(1).......................................

(2)........................................

(3) Where the court is satisfied:-

(a) that the suit must fail by reason of some formal defect.

(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....................”

He submits that the import of the mandate of clause (a) of sub-rule (3) of Rule (1) of Order 23 of the CPC, wherein a coinage occurs (that a suit must fail by reason of some formal defect, though permits the plaintiffs to, on account of an evident defect with respect to the valuation of the suit for the purpose of jurisdiction besides with non affixation thereon of ad velorem court fees, hence, claim that “its” constituting a formal defect also hence leveraging in the plaintiffs a right “to” with the leave of the Court withdraw the suit, with a further liberty to institute it in a Court holding the apposite pecuniary jurisdiction for trying it. He further submits that defendant No. 1 had contested the apposite valuation made in the suit by the plaintiffs for the purpose of jurisdiction also had hence contended that court fees in commensuration thereto, not standing affixed thereon. He also concedes that the learned Civil Judge, Senior Division, on a proper valuation of the suit being made for the purposes of jurisdiction besides ad velorem court fee standing affixed thereon by the plaintiffs, would render him incapacitated to hold trial of the instant Civil Suit. He concedes that if the apposite permission to withdraw the suit with liberty to institute it afresh, in a Court holding the apposite pecuniary jurisdiction, stood hence rested solitarily on the aforesaid anvil, thereupon, its being granted to the plaintiff would rend