A suit with formal defects can be withdrawn under Order XXIII Rule 1(3) CPC, and a fresh suit can be filed on the same cause of action. The plaintiff should not be penalized for the mistakes of her counsel.

Dr. Bharat Bhushan Parsoon, J.

Dismissal of application under Order XXIII Rule 1(3) CPC whereby permission had been sought by the plaintiff to withdraw the suit with liberty to file the same afresh on the same cause of action, forms genesis of this revision petition.

2. There are 27 respondents impleaded in this petition. Though some of the respondents have been appearing through their counsel while some others had been proceeded against ex-parte but still some were yet to be served because correct addresses of theirs were not forthcoming from the petitioner.

3. Before the arguments were started, counsel for the petitioner made a statement that for decision of this revision petition, other unserved respondents were not required and thus gave them up for this purpose.

4. A suit filed by the plaintiff, petitioner herein, is pending adjudication before the Court of Civil Judge (Senior Division), Fazilka (Annexure P-3) where properties located in Fazilka as also in New Delhi are in litigation. When the suit reached the stage of evidence of the plaintiff, it was realised by her that it was inherently flawed and also suffered from a formal defect. Convinced that the suit was bound to fail, her application made to withdraw the same with liberty to file fresh one with better particulars on the same cause of action, was declined by the lower court on 3.9.2013 vide order (Annexure P-1) which is now under challenge in this revision petition.

5. Counsel for the contesting respondents urged that the petitioner-plaintiff has already sufficiently prolonged and procrastinated the matter resulting in harassment to the respondents and thus no permission should be granted for filing a fresh suit on the same cause of action.

6. Hearing has been provided to the counsel for the parties while going through the paper book.

7. Litigants depend on advice of their lawyers. Even well-read persons in the field of law hesitate to take decision on their own without consulting their lawyers. Claim of the petitioner-applicant-plaintiff is that on the facts and circumstances disclosed by her, the plaint was drafted by her lawyer and the suit was filed which later on was found to be inherently flawed.

8. If we go through the impugned order, entire stress of the lower court while dismissing the application of the petitioner-plaintiff is that the application was filed belatedly. Merely because an application for withdrawal of a suit under Order XXIII Rule 1(3) CPC has been filed belatedly, could not be a ground to reject such application if it otherwise was having merit.

9. In Govind Gulabrao More and another v. Laxman Sahebrao More and others 2000 (2) Civil Court Cases 35 (Bombay) it was held that even Appellate Court has power to grant permission to withdraw the suit with liberty to file fresh suit. Almost in similar tone, a co-ordinate Bench of this Court in Sant Baba Darshan Singh Sewak Baba Kharak Singh v. School Beerh Baba Budha Sahib and others 2006(2) RCR (Civil) 160 lucidly explained that in case of dismissal of a suit on merits by a lower court, the plaintiff could still withdraw the suit at appellate stage with permission to file fresh suit on the same cause of action. Support in this regard may also be had from the judgments of this Court in Kanhya Lal (deceased) through Legal Representatives and another v. Nathu and others 1990(1) Recent Revenue Reports 10; Vinod Kumar v. Gurmail Singh and another 2009(2) Civil Court Cases 449.

10. The petitioner-plaintiff had filed a suit for declaration and injunction qua her share as a coparcener in HUF properties located in Fazilka and New Delhi. On having been counselled by another counsel, she realised that she was not in possession of some of the properties and seeking of relief of possession or joint possession by way of partition, was necessary.

11. During the pendency of the suit, it was discovered by the petitioner-applicant-plaintiff that respondent No. 1 had already sold one of the properties mentioned in