IMPORTANT POINT
A plaintiff may withdraw a suit due to formal defects and file a fresh suit on the same cause of action if sufficient grounds are established.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioner has assailed order dated 25.10.2024, passed by learned Senior Civil Judge, Court No.1, Kangra, District Kangra, H.P., in CMA No. 818 of 2024 in Civil Suit No. 69/2023, whereby the application of the applicant under Order 23 Rule 1(3) of the Code of Civil Procedure ( for short ‘the Code’), has been dismissed.

2. The petitioner has preferred a Civil Suit for declaration and permanent prohibitory injunction in respect of immovable property described in the plaint as suit property. It is alleged that late Shri Tulsi Ram was the father of petitioner and respondents. Smt. Godavari Devi was his wife. Petitioner claims inheritance to the estate of her father late Sh. Tulsi Ram alongwith other legal heirs by way of way of natural succession. Thus, plaintiff has challenged the Will allegedly executed by late Sh. Tulsi Ram in favour of respondents and Smt. Godavari (now deceased).

3. Smt. Godavari transferred her share in the suit property in favour of respondents. Though by implication a challenge has been made, in the suit, to the mutation order recorded on the basis of gift deed executed by Smt. Godavari Devi but the Gift Deed has not been challenged.

4. In the above background, petitioner filed an application under Order 23 Rule 1(3) of the Code, before learned trial court with a prayer to withdraw the suit with liberty to file afresh on the same cause of action. It was averred that the original plaint was drafted by one Sh. Balram, Advocate, who died subsequently. Petitioner engaged another counsel, who after examining the records opined that the gift deed of Smt. Godavari Devi was also required to be challenged. Accordingly, it is apprehended that suit may fail on account of technical defect.

5. Respondents contested the application by denying its contents in generality. It was alleged that the application has been filed only to delay the proceedings of the suit. An objection was taken that the petitioner could seek amendment in the plaint.

6. In rejoinder filed by the petitioner, the contents of the application were reiterated. In addition, it was submitted that the gift deed could not be challenged by amendment and could only be done by filing fresh suit on the same cause of action. It was also stated that since the suit was at initial stage, no prejudice was going to be caused to the respondents.

7. Learned Trial Court has dismissed the application on the ground that the plea sought to be raised by the petitioner could be raised by seeking amendment of the pleadings.

8. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

9. Order 23 Rule 1(3) of the Code of Civil Procedure , reads as under -

“Order 23 Rule 1. Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.

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 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 his claim.”

10. A copy of plaint has been placed on record. In the plaint, it is alleged that respondents alongwith their mother Smt. Godavari Devi had got executed a Will dated 02.04.2013 from late Shri Tulsi Ram by fraud and misrepresentation etc. It is further averred that on the basis of the will, the suit land was mutated in the name of respondents and their mother Smt. Godavari Devi vide mutation No. 2788, dated 20.01.2017. Thereafter the respondents got executed a gift deed from their mother Smt. Godavari Devi to the extent of her share in their favour an