Withdrawal of a suit under Order 23 Rule 1 CPC requires either a formal defect or sufficient grounds for a fresh suit.

JUDGMENT :

Sanjay Dhar, J.

1. The petitioner, through the medium of present petition, has challenged order dated 22.12.2023 passed by the learned Sub Judge, Vailoo (hereinafter referred to as “the trial court”), whereby application of respondent No.1 seeking withdrawal of the suit with permission to file fresh suit on the same cause of action in terms of Order 23 Rule 1 CPC, has been allowed. Challenge has also been thrown to subsequent suit filed by respondent No.1 against the petitioner and proforma respondent, which is stated to be pending before the trial court.

2. It appears that respondent No.1 (hereinafter referred to as “the plaintiff” filed a suit for permanent prohibitory injunction against the petitioner (hereinafter referred to as “the defendant”) before the trial court for restraining him from making any interference with his peaceful possession of a patch of land comprised in Survey No.3063/1725 situated at Vailoo. It was pleaded by the plaintiff that in the year 2010, the defendant had provided him the suit land which is adjacent to the shops that have been taken on rent by the plaintiff. The suit land was provided to the plaintiff for the purpose of construction of service station for 9+washing vehicles. It was claimed by the plaintiff that initially the suit land was leased out by the defendant to him but later on he received sale consideration of Rs.50,000/ from the plaintiff and agreed to transfer the ownership of the said land in his favour.

3. It was further pleaded that the plaintiff has incurred expenses of about Rs.15.00 lacs for construction and maintenance of suit property and he has been paying the electricity and water charges for running his car workshop from the suit land. It was alleged by the plaintiff that the defendant is trying to demolish the existing structure and is trying to interfere in his peaceful possession of the suit property by excavating the adjacent land to the detriment of the plaintiff.

4. It seems that the defendant filed his written statement, in which he admitted that he had handed over possession of the suit land to the plaintiff but he claimed that the same was done on the licence basis and licence fee of Rs.24,000/ per annum was fixed. It was pleaded by the defendant that he requires the suit property for his own use and, therefore, he approached the plaintiff to hand over the possession of the property in question to him. It was contended by the defendant that adjacent to the suit property, he is raising construction on his own land after obtaining NOC and permission from the concerned authorities and that he is not raising any construction on the suit land. It was further pleaded by the defendant that under the garb of the suit, the plaintiff is seeking declaration with regard to his ownership on the ground that he has purchased the suit land, as such, the suit is not maintainable.

5. After filing of written statement by the defendant, the learned trial court fixed the case for recording of preliminary statements of the parties. At this stage the plaintiff filed an application under Order 23 Rule 1 CPC seeking withdrawal of the suit with a prayer for permission to file a fresh suit on same cause of action. In the application it was pleaded that due to certain omissions in the statement of facts and some other inadvertent mistakes of legal and technical nature including factual as well, which may damage the case of the plaintiff, it is necessary and expedient to file a properly drafted fresh suit. It was further pleaded that due to technical defect on record, the plaintiff desires to withdraw the suit with permission to file a fresh one on the same cause of action. It was mentioned in the application that the plaintiff had narrated the facts to his counsel but the counsel has not mentioned the exact facts in the plaint and in case the plaintiff is not permitted to file a fresh suit after withdrawal of the suit, he would suffer an irreparable loss.

6. The defendant contested the