JUDGMENT

Shree Chandrashekhar, J. - The petitioners, plaintiffs in Title Suit No.11 of 2002, are aggrieved of order dated 02.12.2010 by which their application under Order 23, Rule 1 and Rule 1(3) CPC r/w section 151 CPC has been rejected.

2. section 80 CPC mandates that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered or left at the office of the Government/public officer. Sub-section 2 to section 80 CPC, however, carves out an exception for the urgent and immediate relief against the Government.

3. There is no limitation provided under Order 23, Rule 1 CPC for moving an application for withdrawal of the suit. The only limitation is that the defect on account of which the plaintiff seeks permission of the Court to withdraw the suit must be a formal defect and it should not touch upon the merits of the matter. Obviously, if trial in the suit has commended and the plaintiff has already examined some of his material witnesses, an application under Order 23, Rule 3 CPC is not maintain