A suit can be withdrawn with liberty to file another one on the same cause of action under Order 23 Rule 1 of the CPC when it is likely to fail due to a formal defect.

RAM CHAND GUPTA, J. (Oral) - Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 30.03.2010 passed by learned Civil Judge(Junior Division), Bathinda vide which request of petitioner-plaintiff to withdraw the present suit with liberty to file another suit on the same cause of action under Order 23 Rule 1 of Code of Civil Procedure (for short, the ‘CPC’), was declined.

2. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

3. Brief facts relevant for the decision of the present revision petition are that, present petitioner-plaintiff filed a suit for declaration to the effect that he is owner in possession of the property in dispute which was purchased by him vide registered sale deed bearing no.2112 dated 08.06.2001 and that order dated 24.10.2005 by the Collector, Sub Division, Bathinda regarding mutation no.2453 is illegal and void and that no street exists in the property in dispute with a consequential relief of permanent injunction restraining respondent-defendant no.1 from illegally and forcibly interfering in possession of the petitioner-plaintiff over the property in dispute. On notice being issued, suit was contested by respondent-defendant by taking the plea that vendor of petitioner-plaintiff was not owner of the land in dispute. Plea was also taken that neither vendor of the petitioner-plaintiff nor petitioner-plaintiff is in possession of the land in dispute and that rather street is in existence at the spot which is being used by respondents-defendants to approach their respective houses and that mutation was rightly challenged by respondents-defendants before the Collector, Sub Division, Bathinda, who had rightly set aside the mutation by passing the impugned order. An application for amendment of plaint was earlier filed by the petitioner-plaintiff under Order 6 Rule 17 CPC seeking relief of possession as well and however, the prayer was declined by learned trial Court. Revision petition filed by petitioner-plaintiff against the said order was also dismissed by this Court. Thereafter, the present application was filed by him to withdraw the the suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1 read with Section 151 CPC, which was contested by respondents-defendants and however, the request of petitioner-plaintiff was declined by the trial Court vide impugned order.

4. It has been contended by learned counsel for the petitioner-plaintiff that Order 6 Rule 17 CPC for amendment of the plaint and Order 23 Rule 1 CPC for withdrawing the suit are different and specific provisions under the Code of Civil Procedure and that even if prayer of petitioner-plaintiff for amendment of plaint seeking relief of possession under Order 6 Rule 17 CPC was declined, petitioner-plaintiff is still having right to pray for withdrawal of the present suit with liberty to file another one with the same cause of action under Order 23 Rule 1 CPC so as to claim possession. It is further contended that it was due to negligence on behalf of the counsel for plaintiff that initially relief for possession was not sought in the suit whereas petitioner-plaintiff was never in possession of the property in dispute and that rather the same was illegally possessed by respondents-defendants. Hence, it is contended that suit for mere declaration is not maintainable without seeking relief of possession, which was available to petitioner on the date of filing of the suit and hence, it is contended that as it is a formal defect, learned trial Court has committed illegality in declining the request of petitioner-plaintiff to withdraw the present suit with liberty to file another one on the same cause of action.

5. On the other hand, it has been argued by learned counsel for the respondent-defendant no.1 that application of pet