1. This writ petition under Article 227 of the Constitution of India by defendant is filed taking exception to the order passed by trial Court dated 25.7.2017 allowing application of respondents/plaintiffs filed under Order 23 rule 1 CPC seeking leave of the Court to withdraw the suit with liberty to file a fresh suit.

2. Facts relevant and necessary for disposal of the writ petition are to the effect that intially a suit for permanent injunction was filed against the defendant asserting that the defendant was licencee of their predecessor-in-title and the plaintiffs have purchased suit property and also prayed for restraining the defendant from using the suit land in any manner whatsoever and, thereafter, prayed for recovery of possession.

3. On notice, defendant filed written statement and denied the title of the plaintiffs. Instead, defendant claimed to have acquired independent right to be in possession of the suit house. The defendant has also raised objection as regards maintainability of the suit, pecuniary jurisdiction of the Court on the ground of improper valuation and insufficient stamp duty paid on the plaint as well as non-impleading necessary party. Besides, the plaintiffs have claimed permanent injunction without seeking relief of recovery of possession.

4. Faced with the situation, plaintiffs have filed an application for amendment of the plaint by filing an application under Order 6 rule 17 CPC to add the relief for recovery of possession. However, the same has been turned down by the trial Court vide order dated 18.5.2017.

5. In the backdrop of the aforesaid facts and circumstances, the plaintiffs have filed an application under Order 23 rule 1 CPC seeking leave of the Court to withdraw the suit and file a composite suit to avoid multiplicity of proceedings in respect of the same property as in the present suit. The petitioner/defendant contested the aforesaid application with an objection that since the suit is at the advanced stage and pending for more than seven years, it could not be just and proper to permit the plaintiffs to withdraw the suit for dragging the defendant in coils of unending litigation. Accordingly, prayed for dismissal of the application.

6. The trial Court by a detailed order has dealt with contentions so advanced by the parties and accepted the prayer of the plaintiffs to withdraw the suit with liberty to file fresh suit to avoid multiplicities of the proceedings in respect of the same suit property. As the plaintiffs has sought a belated leave of the Court for withdrawal of the suit, the defendant has been compensated by awarding cost of Rs.2,000/-.

7. Learned counsel for the petitioner taking exception to the impugned order contends that the power of the Court below to allow withdrawal of the suit under Order 23 CPC is not absolute but circumscribed with various conditions as contemplated under sub-rules (1) to (5) of Order 23 CPC. He lays emphasis on clause (a) of sub-rule (3) CPC which contemplates –

(a) that a suit must fail by reason of some formal defect, and submits that the impugned order does not suggest that suit suffers from any formal defects.

However, the instant suit has been allowed to be withdrawn, despite objection being raised by the petitioner/defendant at a distance of more than seven years. That apart, the newly added plaintiff is not entitled to claim withdrawal of the suit. Accordingly, prayed for setting aside the impugned order.

8. Heard.

9. Upon perusal of the material available on record and the impugned order, this Court finds that defendant/petitioner has raised various objections as regards maintainability of the present suit. The plaintiffs' prayer for recovery of possession has also been considered by the trial Court while dismissing the amendment application. The aforesaid aspect has also been taken into account by the trial Court while allowing the application under Order 23 rule 1 (3) (b) CPC.

10. The question arises for consideration before