Withdrawal of application--With liberty to fresh suit--Court cannot permit one of several plaintiffs to withdraw the suit without consent of other plaintiffs.

Mr. L.N. Mittal, J.: (Oral) - Defendants No.1 and 2 have filed this revision petition under Article 227 of the Constitution of India impugning order dated 30.07.2011 (Annexure P-6) passed by the trial court thereby dismissing the suit as withdrawn with liberty to file fresh suit for specific performance.

2. Respondents No.1 and 2 i.e. Anil Kumar and his wife Mamta Rani (plaintiffs) filed suit against petitioners (defendants No.1 and 2) and Estate Officer, HUDA, respondent/defendant No.3 for permanent injunction restraining the defendants from alienating the suit property in view of agreement allegedly executed by defendant Nos.1 and 2 in favour of the plaintiffs.

3. On 30.07.2011 plaintiff No.1 appeared in person in the trial court and made statement for withdrawing the suit with liberty to file fresh suit for specific performance. Thereupon the impugned order was passed.

4. I have heard counsel for the parties and perused the case file.

5. Counsel for the petitioners contended that the plaintiffs did not even move application for withdrawing the suit with liberty to file fresh suit. It was also argued that there was no plea by the plaintiffs regarding any ground for granting liberty to file fresh suit nor the trial court recorded any ground for the same and, therefore, the impugned order is vitiated. It was also submitted that only plaintiff No.1 made statement for withdrawing the suit with liberty to file fresh suit and, therefore, necessary permission could not be granted because plaintiff No.2 did not make any such prayer. Reference has been made upon Order 23 Rule 1 (5) of the Code of Civil Procedure (in short, ‘CPC’).

6. On the other hand, counsel for respondents No.1 and 2 contended that suit for permanent injunction was filed when date for execution of the sale deed had not expired and since the said date expired during pendency of the suit, the plaintiffs withdrew the suit for injunction with liberty to file fresh suit for specific performance and, therefore, suit for specific performance is not barred by Order 2 Rule 2 CPC. Reliance in support of this contention has been placed on following judgments :-

1. Gurinderpal Vs. Jagmittar Singh, 2004 (11) SCC 219.

2. Daulat Ram Vs. Hari Ram and another, 2003 (2) RCR (Civil) 268.

3. Harbans Singh and others Vs. Mohinder Singh and others, 2003 (3) RCR (Civil) 127.

4. Parsani Devi and another Vs. Angrej Singh and another, 2010 (2) RCR (Civil) 1.

5. Jagat Singh Vs. Jeet Singh and another, 2007 (3) RCR (Civil) 519.

6. Dalip Singh Vs. Mehar Singh Rathee, 2004 (7) SCC 650.

7. Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810.

7. It was also argued that permission to withdraw the suit with liberty to file fresh suit may be granted even on statement of plaintiffs without there being formal application. It was also submitted that the ground that plaintiff No.2 did not join plaintiff No.1 in seeking withdrawal of the suit with liberty to file fresh suit has not been taken in the revision petition.

8. I have carefully considered the rival contentions. I need not adjudicate whether permission to withdraw the suit with liberty to file fresh suit may be granted merely on statement of the plaintiffs without there being formal application. The said issue is not required to be adjudicated in the instant revision petition.

9. Under Order 23 Rule 1 (3) CPC, permission to withdraw the suit with liberty to file fresh suit can be granted only if the suit must fail by reason of some formal defect or there are other sufficient grounds for granting such permission and liberty. In the instant case, neither plaintiff No.1 pleaded any such ground or defect nor the trial court in the impugned order has recorded any finding regarding any such ground or defect in the suit. Consequently, the impugned order is patently perverse and illegal and is not in consonance with the provisions of Order 23 Rule 1 (3) CPC.

10. In addition to the aforesaid, under Order 23 Rule 1 (5) CPC, the court cannot perm