The main legal point established in the judgment is the exercise of judicial discretion in granting permission to withdraw a suit with liberty to file a fresh one under Order 23 Rule 1 of the Civil Procedure Code, emphasizing the need to establish formal defects in the suit likely to lead to its dismissal before granting such permission.

Alok Singh, J.

1. Defendant - petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 19.12.2009 rendered by the Additional Civil Judge, (SD), Tarn Taran, whereby the plaintiff was permitted to withdraw the suit with liberty to file a fresh suit.

2. Brief facts of the present case are that the plaintiff filed a suit against his own father defendant No. 1 and his brothers and sisters defendants Nos.2 to 6, inter-alia with the contention that defendant No.l, his father is about 90 years of age and defendant No.2 (brother of the plaintiff) got sale-deed executed from his father on 24.10.2005 in respect of the land measuring 24 kanals 10 marlas; plaintiff is also having interest in the said property; defendant No.l father had no authority to transfer the land in favour of defendant No.2. A declaration was sought that sale deed dated 24.10.2005 executed by defendant No.l - father in favour of defendant No.2 be declared null and void and defendant No.2 be restrained from dispossessing the plaintiff from the suit land and he may further be restrained from creating third-party interest.

3. Written statement was filed by defendant No.2 - petitioner as well as by defendants No.3, 5 and 6. Father - defendant No.l also filed his counter claim seeking joint possession of l/5th share in respect of the land.

4. During the pendency of the suit and before the commencement of the trial, an application under Order 23 Rule 1 CPC was filed by the plaintiff seeking permission from the Court to withdraw the suit with liberty to file fresh one. Replies were filed by the defendants to the application seeking permission to withdraw the suit with liberty to file fresh suit. The trial Court vide impugned order dated 19.12.2009 allowed the application of the plaintiff and permitted the plaintiff to withdraw the suit with liberty to file a fresh suit.

5. Learned counsel for the petitioner - defendant No.2 vehemently argued that no permission could have been granted to the plaintiff to withdraw the suit with liberty to file a fresh one. Learned senior advocate appearing for the petitioner - defendant No.2 placed reliance on the judgement of this Court in the matter of Piara Ram v. Ganesh Dass, 1 AIR 1967 page 237 and the judgement of the Andhra Pradesh High Court in the matter of Somalraju Chinnammi v. Samanthu Sivaji Ganesh and another, 2 2009 (3) Civil Court Cases 395 and argued that without proving formal defect in the plaint, permission to file fresh suit ought not to have been granted.

6. Learned senior advocate appearing for the respondents in reply stated that since permission was sought at the very initial stage, hence no prejudice is caused to the defendants while permitting the plaintiff to withdraw the suit with liberty to file a fresh suit. Learned counsel for the plaintiff stated that the plaint was not happily worded. He states that the plaintiff has interest in the property but it could not be stated in the plaint by the mistake of the counsel that the property under reference is ancestral property and the plaintiff is co-owner of the property. In view of this permission was rightly granted.

7. Learned Single Judge of this Court in the case of Piara Ram (supra), has placed reliance on the judgement passed by the Privy Council in paragraph 5 of the judgement, which reads as under: -

"5. The learned Subordinate Judge, in my opinion, appears to have been labouring under an impression that it is open to the Courts in India to allow a suit to be withdrawn with liberty of suing again without assigning any reason for adopting such a course, and outside the provisions of Order 23, Rule 1(2). This impression is, if I may say so, wholly misconceived. I may at this stage with advantage reproduce the following observations from a judgment of the Privy Council in Robert Watson and Co. v. Collector of Rajshaye, (1870) 13 Moo Ind App 160 (PC) :-

"There is a proceeding in those Court