Order.-The Civil Miscellaneous Petition is for withdrawal of a suit with liberty to file a fresh suit. The matter falls to be considered under Order 23, rule 1 (2) of the Code of Civil Procedure, although the provision of law relied on in the petition is section 151 of the Code.

2. The suit which the petitioner wishes to withdraw was a suit filed by him against the Devaswom of a temple governed by the Madras (Transferred Territory) Incorporated and Unincorporated Devaswoms Act, 1959 (Madras Act XXX of 1959). This suit was not preceded by service of a suit notice on the Devaswom as stipulated in section 34 of the Act. The Devaswom pleaded this section in defence, and said that the suit against them was bad for want of notice. The plaintiff apparently, wishes now to cure this defect by serving a proper notice on the Devaswom after withdrawing the present suit and then file a fresh suit after notice. The petitioner’s learned counsel urges before me that absence of proper notice under section 34 of the Act has to be regarded as a mere formal defect. On this basis, he urges that I should grant leave to him for withdrawal of this suit with liberty to file a fresh suit against the Devasom.

3. Order 23, rule 1 (2) (a) of the Code of Civil Procedure does speak of a formal defect in a suit as providing a good ground for granting leave to the plaintiff to withdraw his suit. But I do not see that what the present suffers from is a formal defect. The suit was not preceded by actual service of notice under section 34 of Madras Act XXX of 1959. I do not consider this provision as a formal provision, by any means. Cases have held that section 80 of the Civil Procedure Code, on which section 34 of this Act is obviously modelled, has to be complied with by suitors in all cases, even in suits for injunction, and in the absence of such notice suits against the Government do not He. This strict attitude of the Courts would be inexplicable if suit notices under section 80 of the Code were regarded as mere formalities.

4. But even assuming, for the limited purposes of Order 23, rule 1 (2) (a), that absence of a suit notice under section 34 of the Act, or, for that matter, under section 80 of the Code, is a mere formal defect, it is not the law that on that account the Court must, as a matter of course and in every case, grant leave to the plaintiff to withdraw his suit. On the contrary, as I understand Order 23, rule 1 (2), the grant of leave to withdraw a suit is always a matter for the discretion of the Court. Mark the expression ‘may’ occurring in rule 1 (2). Clause (b) of the Rule says that the Court may allow a suit to be withdrawn if it is satisfied that ‘sufficient grounds’ exist therefor in the case. This clause does not say what grounds may be regarded as sufficient. It is in this context that clause (a) and its specific reference to ‘formal defects’ becomes clear. By enacting this clause, the Legislature has only relieved the Court from having to decide whether a formal defect can be a sufficient ground for exercising its discretion. But thereby the Legislature has not enacted a different rule for the exercise of the discretion itself. In my view, whether the Court is moved under clause (a) or clause (b), what is invoked for exercise is the Court’s discretion.

5. Learned counsel for the petitioner cited before me a number of reported cases. I do not regard them as precedents, in the proper sense of the word, compelling me in this case to take one particular line rather than another. I just regard them as so many illustrations of the different ways in which different Courts had exercised their discretion when dealing with motions for withdrawal of suits under different circumstances .

6. Learned counsel cited an unreported judgment of Varadarajan, J., as a near authority. In that case, this very Devaswom was a party-defendant and had opposed the withdhrawal of the suit. The learned Judge overruled their objection and granted leave to the plainti

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