A court has the discretion to permit withdrawal of a suit with liberty to file a fresh suit in respect of the same subject-matter if the suit fails for a formal defect.

P.R. Gokulakrishnan, J.

1. This revision arises out of an order passed in I. A. No, 679 of 1971 in A. S. No. 18 of 1978.

2. The short facts leading to the filing of the application I. A. No. 679 of 1978 are as follows: The petitioner in this interlocutory application, as the plaintiff, filed the suit O. S. No. 229 of 1977, on the file of the District Munsif's Court, Periakulam, to recover a sum of Rs. 3,150 with interest from the respondents herein. The plaintiff, which is a chit fund company, had the first defendant as its member. The first defendant joined Chit No. 21-group which is for a total sum of Rs. 5,000. This amount is payable in 25 instalments at the rate of Rs. 200 per month. In the second instalment, the first defendant bid at the auction on 15th March, 1976, and received the amount. After doing so, the first defendant executed a pronote for Rs. 4,600 for the future 23 installments. This was on 2nd April, 1976. According to the petitioner, the first defendant paid Rs. 1,400 for instalments Nos. 3 to 9 and Rs. 50 for the 10th instalment. Later, he defaulted from 13th September, 1976. Hence, the plaintiff came forward with the present suit demanding the sum of Rs. 3,150 towards principal and Rs. 259.35 towards interest. Defendants 2 and 3 are the legal representatives of the guarantor for the first defendant who was no other than the wife of the first defendant.

3. The first respondent-first defendant contended that it is true that he executed a promissory note for 4,600 for the future 23 instalments, that the plaintiff is not entitled to claim the entire amount in one lump sum, that each instalment has a separate cause of action, that the plaintiff ought to have filed the suit only for the defaulted subscriptions and not for the entire suit amount and that the suit is premature. During arguments it was contended that the suit is not maintainable since no notice under Section 25 of the Chit Fund Act has been given. According to the first defendant, such a notice is mandatory and the failure to issue such a notice will result in the dismissal of the suit.

4. The trial Court, holding that the suit ought to have been filed for the defaulted subscriptions only upto 20th July, 1977 and that the suit is not maintainable for want of notice under Section 25 of the Chit Fund Act, dismissed the suit. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal A. S. No. 18 of 1978 before the Additional Subordinate Judge at Dindigul. In that appeal, the plaintiff filed I. A. No. 679 of 1978 praying for permission to withdraw the appeal with permission to file a fresh suit on the same cause of action. In support of that application, the petitioner has averred that his suit has been dismissed for want of notice under Section 25 of the Chit Fund Act, that the petitioner must be permitted to file a fresh suit on the same cause of action after issuing a notice to the first respondent under Section 25 of the Chit Fund Act and that if such permission is not given irreparable loss and hardship will be caused to the petitioner. The Subordinate Judge, Dindigul, who heard this interlocutory application filed under Order 23, Rule 1, Civil Procedure Code, following the decision reported in Charles Samuel v. Board of Trustees (1978) 2 M. L. J. 243, came to the conclusion that this is not a fit case in which the discreation under "Order 23, Rules 1 and 2, Civil Procedure Cods," should be exercised. Hence he dismissed the application with costs. Aggrieved by the order passed by the learned Subordinate Judge, the plaintiff in O. S. No. 229 of 1977 has filed the present revision petition.

5. Mr. Sarvabhauman, the learned Counsel for the petitioner, took me through the decision reported in Charles Samuel v. Board of Trustees (1978) 2 M. L. J. 243, and also the unreported decision rendered by Varadarajan, J., in Sri Meenakshisundareswarar Devasthanam, Madurai v. Irulayee Ammal and 3 Ors. S. A. No. 2325 of 1975. In the ju