Court must record satisfaction regarding formal defects or sufficient grounds for allowing withdrawal of a suit as stated under Order XXIII Rule 1 CPC.

JUDGMENT :

Alka Sarin, J.

Present revision petition has been filed challenging the order dated 28.11.2024 (Annexure P-12) whereby the application filed by the plaintiff-respondent under Order XXIII Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 for grant of permission to withdraw the civil suit with liberty to file a fresh suit has been allowed.

2. The brief facts relevant to the present lis are that the plaintiff-respondent herein filed a suit for permanent injunction to the effect that the defendant-petitioner herein be restrained from selling, mortgaging, transferring, gifting and alienating in any manner the suit property as fully described in the plaint. It was averred in the plaint that an agreement to sell had been entered into on 20.03.2024 in favour of the plaintiff-respondent for a sale consideration of Rs.94,00,000/-. It was further averred in the plaint that the defendant-petitioner herein wanted to grab the money of the plaintiff-respondent unlawfully and that he was playing in the hands of some mischievous and anti-social persons and was trying to sell the property. Hence, the suit. Written statement (Annexure P-2) was filed by the defendant-petitioner wherein a specific plea was taken regarding the cause of action for filing the suit. It was stated that the suit had already become infructuous as the plaintiff-respondent was fully aware that he had lost the other efficacious remedies available to him and he was debarred from filing any other suit. Subsequently, an application (Annexure P-7) was filed by the plaintiff-respondent under Order VI Rule 17 CPC for amendment of the plaint for converting the suit from one for permanent injunction to a suit for possession by way of specific performance. Reply to the said application was filed. Vide order dated 25.09.2024 (Annexure P-9) the said application was dismissed, which was not further challenged by the plaintiff-respondent. Thereafter, an application (Annexure P-10) was filed under Order XXIII Rules 1 and 2 read with Section 151 CPC for grant of permission to withdraw the civil suit with permission to file a fresh suit. Reply was filed to the said application. Vide the impugned order the said application was allowed. Hence, the present revision petition by the defendant-petitioner.

3. Learned counsel for the defendant-petitioner would contend that there was no formal defect with the suit and that earlier the plaintiff-respondent had filed an application for amendment of the plaint, which was dismissed vide order 25.09.2024 (Annexure P-9), which the plaintiff-respondent chose not to challenge. Now the plaintiff-respondent by seeking permission to withdraw the present suit wishes to file a suit for specific performance, which cannot be permitted as his application, which was dismissed vide order dated 25.09.2024, has attained finality.

4. Per contra learned counsel for the plaintiff-respondent would contend that the suit for specific performance has already been filed and that since the defendant-petitioner was not willing to honour the agreement to sell, hence, the necessity for filing a suit for specific performance. It is further the contention that under Order XXIII Rule 1 CPC the suit can be permitted to be withdrawn if the Court is satisfied that it must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit. Learned counsel for the plaintiff-respondent would further contend that the present case falls within the parameters laid down in Order XXIII Rule 1 Sub Rule (3)(b) CPC and that there are