The main legal point established is that withdrawal of a suit with liberty to file a fresh suit can only be permitted if there are formal defects or sufficient grounds as per Order XXIII, Rule 1, CPC.

Whether, on the facts and circumstances of this case, the learned Civil Judge, Senior Division, is correct in permitting the respondents to withdraw the suit with a liberty to institute a fresh suit, is the moot point in this civil revision.

2. The controversy is best understood by referring to the brief facts of the case. On or about 15-2-2010, the respondent, who is the plaintiff in the suit, claiming to be a mentally retarded person instituted a suit against the petitioner for declaration and recovery of khas possession as a consequential relief and also for cancellation of instrument under Section 31, Specific Relief Act, 1963. Some other persons were also impleaded as pro forma defendants without claiming any relief from them. The suit was registered as Title Suit No.19 of 2010. The petitioner contested the suit and filed her written statement. She also filed an application under Order VII, Rule 11 read with Section 151 CPC praying for rejection of the plaint, but the application was rejected by the trial court. The civil revision filed by the petitioner before this Court against the rejection of her application came a cropper. Seven issues were framed by the trial court, one of them was Issue No.3, namely, whether the suit is barred by res judicata. On the application of the petitioner, the trial court agreed to hear the said issue No.3 as preliminary issue. After hearing the parties, the trial court, however, took the view that the issue concerning limitation could not be decided without deciding Issue No.6 and, therefore, proceeded to try all issues and directed the respondent to file examination-in-chief by affidavit.

3. The petitioner approached this Court under Article 227 of the Constitution in CRP No.105 of 2015. This Court by the order dated 5-4-2016 set aside the order of the trial court and directed it to decide Issue No.3 and, if necessary, Issue No.6 as preliminary issues keeping in view the peculiar facts and circumstances of this case. This Court also permitted the adduction of evidence with respect only to the mental illness of the plaintiff-respondent and not on any other issue. The trial court thereafter proceeded to examine witnesses for the respondent and examined three witnesses as produced by her. Cross-examinations of those witnesses were also completed. However, on 28-5-2016, the respondent all of a sudden filed an application under Order 23, Rule 3 read with Section 151 CPC seeking permission to withdraw the suit with liberty to institute a fresh suit in respect of a part of her claim. The petitioner opposed her application and promptly filed her written objection there against. The trial court, after hearing the parties, passed the impugned order on 3-6-2016 allowing the respondent to withdraw the suit with a liberty to file a fresh suit on the same subject-matter subject to payment of cost of Rs.5,000/-. Aggrieved by this, the petitioner is filing this revision.

4. I have carefully gone through the impugned order. What prompted the trial court to allow the application is that this Court had directed it to decide two issues as preliminary issue, but nowhere in the order was the plaintiff-respondent precluded from withdrawing the suit, and the objection raised by the petitioner, therefore, had no legs to stand upon. The trial court thus allowed the respondent to withdraw the suit with a liberty to institute a fresh suit on the same subject-matter subject to payment of cost of Rs.5,000/-. Assailing the impugned order, Mr. A K Bhowmik, the learned senior counsel for the petitioner, submits that the trial court has no jurisdiction to allow the withdrawal of suit with liberty to institute a fresh suit without first satisfying itself that the suit must fail by formal defect or for sufficient ground; there is no finding recorded by it in these aspects of the matter. The trial court, contends the learned senior counsel, has exhibited a clear case of non-application of mind in allowing the