1. In this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 30.4.2014 passed by the Civil Judge, Class II, Seondha District Datia (M.P.) in Civil Suit No.61-A/2012 whereby the application under Order 23 rule 1 CPC has been dismissed seeking leave of this Court to withdraw the suit with liberty to file afresh.

2. The facts in nutshell are that the petitioner-plaintiffs filed a suit for declaration and permanent injunction. Since there was defect of non-joinder of necessary party and due to lack of certain pleadings, the petitioner moved an application under Order 23 rule 1 CPC. The learned trial Court dismissed the application on the ground that defect of non-joinder of party is not a formal defect and lack of pleading cannot be a ground for granting the permission to withdraw the suit with the liberty to file fresh suit.

3. The learned counsel for the petitioner submitted that the trial Court without considering the relevant provisions contained in Order 23 rule 1 CPC has rejected the application which is dehors the provisions of law.

4. Order XXIII rule 1 CPC makes provisions for withdrawal of the suit. Sub-rule (3) of rule 1 of Order XIII being relevant is reproduced below:

“1.Withdrawal of suit or abandonment of part of claim. -- (1) xxxx

(2) xxx xxx xxx xxx

(3) where the Court is satisfied :

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

(b) that there are 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, or such terms of it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.”

5. A bare reading of the aforesaid provision would show that the plaintiffs may, in the circumstances mentioned in sub-rule (3), be permitted by the Court to withdraw a suit with liberty to sue a fresh on the same cause of action. The legislative policy, as pointed out by the apex Court in the case of K.S. Bhoopath v. Kokila [AIR 2000 SC 2132], in the matter of exercise of discretion is clear. The relevant passage is reproduced below :

“The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file afresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII rule 1(3) CPC for exercise of the discretionary