Withdrawal of a suit requires sufficient grounds as per Order XXIII, Rule 1(3) of CPC, and belated applications may be dismissed to prevent abuse of process.

ORDER :

K. GOVINDARAJAN THILAKAVADI, J.

This Civil Revision Petition is preferred against the order made in I.A.No.4 of 2023 in O.S.No.129 of 2012 on the file of the Additional District Munsif Court, Manappari.

2. The facts of the case is that the suit in O.S.No.129 of 2012 on the file of the Additional District Munsif Court, Manappari was filed by the petitioner/plaintiff for permanent injunction against the respondent/defendant. Pending suit, the petitioner/plaintiff made an application in I.A.No.4 of 2023 for withdrawal of the suit with liberty to file a fresh suit. In the said petition, it is averred that the plaintiff is using the suit property as access to the main road from his rice mill and house. Since the respondent/defendant is interfering with the plaintiff's access in the above suit property, the petitioner/plaintiff was constrained to file the above suit for permanent injunction restraining the respondent/defendant from interfering the right to access of the petitioner/plaintiff in the suit property. While so, pending suit on 29.11.2012, the petitioner/plaintiff purchased the suit property from one Viyakulam. While so, the suit was dismissed for default and on application made by the petitioner/plaintiff, the suit was restored to file and posted for trial. At that stage, the petitioner took out an application for withdrawal of the suit with liberty to file fresh suit on the same cause of action. His contention is that since the suit property were purchased by him, the petitioner is having absolute right over the suit property and therefore, it is not possible for the petitioner to proceed with the suit claiming the relief of permanent injunction alone. The said application was resisted on the side of the respondent stating that the suit was filed in the year 2012 and the alleged sale deed is dated 29.11.2012. Therefore, it would reveal that at the time of filing the suit, the plaintiff was not having any right over the suit property. The above petition has been filed after lapse of 11 years after filing the suit, hence, the same is not maintainable and liable to be dismissed. The Trial Court in its order, dated 13.12.2023 dismissed the said application by stating that the application has been belatedly filed and by giving liberty to the petitioner for amending the plaint and that, such an application to withdraw the suit would be to the detriment of the defendant's valuable defence in the above suit.

3. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent and perused the materials available on record.

4. Order XXIII, Rule 1 (3) of the CIVIL PROCEDURE CODE , 1908 states that a suit can only be withdrawn with permission to file a fresh suit, if the Court is satisfied that:

1. There is a formal defect, 2. There are other sufficient grounds for allowing the plaint to file a fresh suit. The Courts power to allow withdrawal of a suit is discretionary.

5. The principle behind Order XXIII, Rule 1 (3) of CPC is based on public policy to prevent the institution of a suit again and again on the same cause of action. However, the plaintiff should make a specific prayer for the Courts leave to institute a fresh suit in the withdrawal application. The plaintiff cannot claim or withdraw the suit to the detriment of the defendant's legitimate right.

6. I have considered the rival submissions carefully with regard to the facts and circumstances of the case.

7. Under Order XXIII, Rule 1 (3) of CPC, if the Court is satisfied that the suit would fail by reason of some formal defect or if the Court feels that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or pa