Withdrawal of a suit under Order 23, Rule 1(2) of the Code of Civil Procedure can only be permitted if there is a formal defect or other sufficient ground for allowing the plaintiff to institute a fresh suit. Failure to summon or produce witnesses is not a ground for withdrawal.

I.D.Dua, J.

1. Ganesh Das and Bahadur Singh sons of Shri Paira Ram instituted a suit for a declaration to the effect that the land mentioned in the plaint is not liable to be alienated by defendant No. 1, Shri Paira Ram and that he be restrained from transferring the same in favour of defendant No. 2 or 3. Defendant No. 2, Sohan Lal, is the son of defendant No. 3, Smt. Prem Lata, and defendant No. 3 is described to be residing at the house of Piara Ram, defendant No. 1. This suit was instituted on 16-2-1963 and issues were framed on 29-5-1963, when 19-9-1963 was fixed for the plaintiffs evidence. 19th of August 1963 was the intermediary date for checking up the service of witnesses. On that date, it was discovered that no witness had been summoned by the plaintiffs. On 19-9-1963, the plaintiffs did not produce any witness, Needless to repeat, that they had also failed to summon any witness. 16th of December 1963 was the next date and the plaintiffs were guilty of similar default on that date too. The plaintiffs on that date made a statement that they wanted to withdraw the suit with permission to file a fresh suit on the same cause of action. The learned Subordinate Judge, Shri V.K. Kaushal, after recording the statement, apparently adjourned the case to 18-12-1963, when he passed the impugned order, which I should like to reproduce in extenso :-

-

"As per statement given by the plaintiff, this suit is dismissed as withdrawn with permission to file a new suit on the same cause of action, subject to the payment of Rs. 20 as costs, before filing the fresh suit. No order as to costs in this suit. File be consigned."

2. On revision before me, the learned counsel for the petitioners, Shri Ram Rang has very strongly argued that the learned Subordinate Judge has committed a material irregularity in the exercise of jurisdiction in passing the impugned order. He has in this connection submitted that such withdrawal can only be permitted under Order 23, Rule 1(2), Code of Civil Procedure, according to which, where the Court is satisfied :-

-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim, with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. The counsel has in support of his submission drawn my attention to Raghbir v. Roshan Lal, 1964-66 Pun LR 404, Bhag Mal v. Master Khem Chand, AIR 1961 Punj 421, Ran Singh v. Mukhtiara Singh, AIR 1953 Pepsu 105 and Fulchand v. Rameshwar Lal, AIR 1963 Pat 63.

3. The respondents in pursuance of substituted service under Order 5, Rule 20, C. P. Code, have not cared to appear and oppose the petition.

4. This petition has merit and must, in my opinion, succeed. It is obvious that the plaintiffs did not allege that their suit was bound to fail by reason of some formal defect, and indeed the learned Subordinate Judge has also not so found. As a matter of fact, on the present record, it was not possible for the Court to record such a finding. I am also unable to discover any other sufficient ground for allowing the plaintiffs to institute a fresh suit on the same cause of action. In fairness, the learned Subordinate Judge also has not recorded such a finding, as indeed he could not do so on the existing record.

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