IMPORTANT POINT
The central legal point established in the judgment is that a plaintiff seeking permission to withdraw a suit with liberty to file a fresh suit on the same cause of action must satisfy the requirements of Order 23 Rule 1(3) of C.P.C., including demonstrating the existence of a 'formal defect' or other 'sufficient ground'. Failure to meet these requirements may result in the petition being deemed an abuse of process of court.

JUDGMENT :

(Prayer: This Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, to set aside the fair and decreetal order, dated 07.02.2023 passed in I.A.No.4 of 2023 in O.S.No.23 of 2017 on the file of the District Munsif Court, Nanguneri.)

1. The Civil Revision is directed against the order passed in I.A.No.4 of 2023 in O.S.No.23 of 2017, dated 07.02.2023 on the file of the District Munsif Court, Nanguneri, allowing the petition filed under Order 23 Rule 1 of the Code of Civil Procedure.

2. The first respondent, as plaintiff has filed the suit claiming permanent injunction restraining the defendants and their men from interfering in any manner with the plaintiff's peaceful possession and enjoyment of the suit property and the same is pending in O.S.No.23 of 2017 on the file of the Sub Court, Naguneri.

3. For the sake of convenience and brevity, the parties herein after will be referred as per their status/ranking before the trial Court.

4. Admittedly, the plaintiff and the defendants are brother and sisters and are children of Ganapathy Nadar and Gnanadeepam.

5. It is not in dispute that the suit property was owned by their father Ganapathi Nadar, who purchased the same from one Ramaiah Konar vide sale deed, dated 23.06.1999. The plaintiff by alleging that her father Ganapathy Nadar had orally gifted the suit property to the plaintiff in December 2020; that the said gift was accepted by the plaintiff and she has been in possession and enjoyment of the same; that her father died on 25.12.2012 and her mother Gnanadeepam died on 05.01.2017; that the defendants after the death of Gnanadeepam had been attempting to dispossess the plaintiff from the suit property and that therefore, the plaintiff was constrained to file the above suit claiming permanent injunction.

6. The defence of the second defendant is that her father Ganapathy Nadar had executed a settlement deed in favour of his wife Gnanadeepam and son Jeyakumar/1st defendant vide document dated 05.12.2001; that thereafter, Ganapathy Nadar had mortgaged the suit property with his daughter/2nd defendant vide registered document dated 05.05.2006; that thereafter, Ganapathy Nadar sold the suit property for Rs.12,00,000/- to the second defendant vide sale deed dated 12.10.2011; that the plaintiff and the first defendant had subscribed their signatures as witnesses to the sale deed; that the second defendant has been residing in Mumbai with her two daughters; that since the house in the suit property was closed after the death of her mother, the plaintiff taking advantage of the same had trespassed into the suit property and started to use the same illegally; that thereafter, the plaintiff has filed a false and vexatious suit in O.S.No.23 of 2017 claiming permanent injunction as if she is the owner of the property on the basis of the alleged oral gift given by their father and that therefore, the suit is liable to be dismissed.

7. It is not in dispute that after completion of trial and when the case was posted for arguments, the plaintiff has filed the above application under Order 23 Rule 1 C.P.C., seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action.

8. The learned counsel for the petitioner has relied on the decision of Hon'ble Supreme Court in Anil Kumar Singh Vs. Vijay Pal Singh and others reported in 2017 (6) CTC 771, wherein the Hon'ble Supreme Court has observed that mere withdrawal of the suit without asking for anything more can always be permitted and the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him. But in the case on hand, the plaintiff has sought for withdrawal of the suit with liberty to file a partition suit on the same cause of action and as such, the above decision cannot be applied to the case on hand.

9. The case of the plaintiff in the affidavit filed in suppo