A court may allow the withdrawal of a suit with liberty to file a fresh suit on the same cause of action if the defect in the plaint is a formal defect and if substantial justice would be rendered by allowing the withdrawal.

1. The above revision has been filed by the defendants in O.S.No.950 of 1987 on the file of the Sub Court. Tiruchirappalli, challenging the order passed by the learned judge in the court below dated 9. 1992 in I.A.No.393 of 1992, wherein the plaintiff has been permitted to withdraw the suit O.S.No.950 of 1987 with liberty to file a fresh suit on the same cause of action in exercise of the powers under Order 23, Rule 1 read with Section 151 of the Code of Civil Procedure.

2. The suit was filed by the plaintiff-temple represented by its Executive Officer for recovery of possession of the suit property based on title. It appears that the defendants contested the claim by filing a written statement contending that the plaintiff -temple has no title to the suit property. At that stage, it appears that on verification it was noticed that the description of property as given in the plaint is not complete either in respect of boundaries or in respect of the measurements and this technical defect may cause prejudice to the rights and interests of the plaintiff-temple. Consequently, on advice, the application for withdrawal with liberty to file fresh suit on the same subject matter was filed. The said application was also opposed by the defendants contending that inadequate or wrong description of property in dispute in suit is not a formal technical defect in the plaint and such a defect is a substantial one and, therefore, liberty should not be given as prayed for.

3. On the above claims and counter claims, the learned subordinate Judge, on being convinced of the legality, genuineness and propriety of the claims made, allowed the application on the view that the defects pointed out do not pertain to the substantial merits, but are formal defects and, therefore, there could be no impediment for allowing the application as prayed for by the plaintiff. In coming to such a conclusion, the court below placed reliance on the decision reported in V.Balan alias V. Balasubramanian v. R.S. Rajan and another , 1991 (2) L.W.193 as against the reliance placed by the learned counsel for the defendants on the decision reported in Lala Chatram v. Krishnammal , 1984 (I) M.L.J. 28. Mr.R.Srinivasan, learned counsel appearing for the petitioners strenuously contended that the court below committed an error in relying upon the decision reported in V.Balan alias V.Balasubramanian v. R.S.Rajan and another , 1991 (2) L.W. 193, that the stage at which the application for withdrawal was moved also would disentitle the plaintiff from getting the relief of withdrawal granted by the court and that if at all the remedy available was only to file an application for appropriate amendment and not by seeking for withdrawal of the suit with liberty to file a fresh suit on the same subject matter.

.4. In Lala Chatram v. Krishnammal 1984 (I) M.L.J. 28 a learned single judge of this Court held in a case where the first Appellate Court permitted the plaintiff to withdraw the suit with liberty to file a fresh suit on the same subject-matter, that the plaintiff is not entitled to withdraw the suit. That was a case wherein a suit filed by the plaintiff for declaration of title to a vacant space in T.S.No.620, whereas the defendant claimed that the land actually was in T.S.No.629. The trial court appears to have dismissed the suit on the report of the commissioner and the plaintiff pursued the matter on appeal and before the Appellate Court, an application for amending the plaint to include T.S.No.629 in the schedule of description was also filed, but was dismissed. A revision filed thereafter also seems to have been dismissed by this Court. It was at that stage an application seems to have been filed before the First Appellate Court to permit the plaintiff to withdraw the suit and file a fresh suit and with this, when permitted by the learned First Appellate Judge, the learned single judge interfered. In addition to all the above, it seems in that case, the ca