A plaintiff must establish a formal defect under Order XXIII Rule 1 to withdraw a suit and file a new one, and courts must provide reasons for such decisions.

ORDER :

1. The defendant in O.S.No.537 of 2023 is the revision petitioner. The revision petition has been filed, challenging the grant of leave to the plaintiff to institute a fresh suit on the same cause of action.

2. I have heard Mr.D.Senthil Kumar, learned counsel for the revision petitioner and Mr.T.M.Naveen, learned counsel for the contesting respondents.

3. The learned counsel for the petitioner, taking me through the order passed in the interlocutory application in I.A.No.131 of 2023 as well as the affidavit filed in support of I.A.No.08 of 2024, being the application filed under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908, as well as the impugned order, would submit that the affidavit seeking leave to file a fresh suit on the same cause of action did not disclose any formal defect, warranting leave to be granted in the first place.

4. He would further submit that the trial Court has without giving a finding that the defect was formal or that for other reasons, leave had to be given to the plaintiff, has erroneously allowed the application. The learned counsel would place reliance on the decision of the Division Bench of this Court in Kavitha v. C. Prabakar Rep. by his Power of Attorney Dr. A. Chandrasekaran , (2012) 5 CTC 587 .

5. Per contra, Mr.T.M.Naveen, learned counsel appearing for the respondents would submit that the plaintiff had given sufficient reasons, pointing out formal defects, entitling him to leave and the trial Court had rightly exercised discretion in favour of grant of leave. He would also place reliance on the decision of the Hon'ble Supreme Court in V. Rajendran and Another v. Annaswamy Pandian (Dead) through LRs. (2017) 5 SCC 63 . Relying on the said decision, Mr.T.M.Naveen would contend that the dispute in the present case would also constitute a formal defect, thereby entitling the plaintiff to seek permission to withdraw the suit, with liberty to file a fresh suit on the same cause of action. He would therefore pray for the revision being dismissed.

6. I have carefully considered the submissions advanced by the learned counsel on both sides. I have also gone through the order of the Principal District Munsif Court, Puducheerry, granting leave to the respondents/plaintiffs to file a fresh suit on the same cause of action.

7. The suit has been instituted for the relief of a permanent injunction to restrain the defendant/revision petitioner from interfering with the plaintiffs' enjoyment of the suit property and for a mandatory injunction to remove the compound wall constructed on the southern side of the plaintiffs' property. Along with the suit the respondent also moved an interlocutory application in I.A.No.131 of 2023, and after contest, the said interlocutory application came to be dismissed, holding that the plaintiff is not entitled to the relief of interim injunction as prayed. Admittedly the said order is under appeal in C.M.A.No.9 of 2024 before Principal Sub-Judge, Puducherry.

8. Mr.T.M.Naveen, the learned counsel for respondents would submit that the injunction was refused only on account of complex triable issues arising in the suit and the relief sought for in the interim injunction application, as well as in the main suit being one and the same, the trial Court thought it fit to dismiss the injunction application. He would therefore state that the dismissal was not on consideration of the facts put forth on either side.

9. No doubt, there is an observation made by the trial Court that the relief sought for in the interim application and the main suit being one and the same, the plaintiff was not entitled to any temporary relief. However, I find from the order passed in I.A.No.131 of 20