1982 Supreme(MP) 663

IN THE HIGH COURT OF MADHYA PRADESH
FAIZANUDDIN, J.
R.P. Tiwari - Appellant
Versus
Rajesh Kumar - Respondent
S.A. No. 685 of 1976 (J)
Decided On : 19-07-1982

Headnote:(1) Civil Procedure Code, 1908 – O. 23, R.1 (1) and (3) – application for withdrawal of suit to file fresh suit – Court allowing withdrawal – filing fresh suit disallowed – prayed cannot be split up.

       (2) Civil Procedure Code, 1908 – O. 23, R. (3) (a) and (b) – expression other sufficient grounds used in clause (b) and "formal defects" used in clause (a) – not inter – dependent.

        Short Note

       1. The plaintiff had instituted a suit claiming relief of perpetual injunction restraining the defendants from selling the suit – property, During the pendency of the suit defendants sold the property in suit to a third person. Plaintiff, therefore, applied on March 26, 1974, under rule (1) of O. 23 of the Code for permission to withdraw the suit with leave to me a fresh one on the same cause of action by joining the purchaser as a party defendant and by claiming fresh relief against her. The Courts below allowed the plaintiff to withdraw the suit but rejected his prayer for permission to bring a fresh suit.

       Held: If a plaintiff merely desires to withdraw a suit all that he has to do is to make an application under sub – rule (1) of rule (i) of O.23 (as it then existed). But where he applies under sub – rule (2) (now sub – rule 3 after amendment of the Code) what he wants is that he should be permitted to withdraw the suit with permission to institute a fresh suit, and therefore, when an application is made under sub – rule (2) (now sub – rule 3), it is not open to the Court to treat it as if it is an application under sub – rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit. The prayer under sub – rule (2) (now sub – rule 3) must be treated as one whole and the Court may either reject the entire prayer or allow the entire prayer i.e., permit the withdrawal of the suit with liberty to bring a fresh suit. The reason is that if the Court grants him the permission to withdraw but refuses the permission to institute a fresh suit, the result would be that the plaintiff would be deprived of carrying on with the suit as best as he can and would also not be permitted to an file a fresh suit on the same cause of action which was not the intention of the legislature that the plaintiff should be pint to this loss by breaking up the prayer for withdrawal with permission to file a fresh suit about the same subject matter into two parts.

       2. The withdrawal of the suit with permission to file a flesh suit on the same cause of action may also be given on some other "sufficient grounds" by reason of which the suit is bound to result in the dismissal. The Court must be satisfied that the suit would fail by reason of some formal defect and the application bf the plaintiff has to satisfy the formal defects in the suit which are likely to lead to dismissal of the suit. But there is no justification for restricting the meaning of the expression "other sufficient grounds" in clause (b) of sub – rule (3) of rule (i) of O.23 of the Code only to formal defects or those analogous thereto. The words are wide enough to embrace other defects as well. It will be noticed that the expression “Other sufficient grounds" used in clause (b) of sub – rule (3) of rule 1 of O.23 is not enacted as a part of or as a continuation of clause (a) so as to connote a formal defect but is separately classified and mentioned under separate dame. AIR 1956 Raj. 53, AIR 1971 Mad. 477, AIR 1956 Orissa 77 and AIR 1926 Mad. 594 relied on. Appeal allowed.