Under CPC Order 23 Rule 3, withdrawal of a suit is permissible for formal defects, allowing plaintiffs to file a fresh suit to ensure justice is served.

ORDER :

B.R.MADHUSUDHAN RAO, J.

1. This Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the order in IA.No.60 of 2020 in OS.No.386 of 2007, dated 27.12.2022 by the Special Judicial Magistrate of First Class Cum II Additional Junior Civil Judge at Nalgonda wherein the application filed by the petitioners under Order 23 Rule 3(a)(b) of CIVIL PROCEDURE CODE , 1908 (for short ‘CPC’) came to be dismissed.

2. Petitioners are the petitioners-plaintiffs and the respondents are the respondents-defendants in IA.No.60 of 2020 in OS.No.386 of 2007.

3.1. Learned counsel for the petitioners submits that the Court below ought to have seen that permission to withdraw the suit with liberty to file a fresh one can be granted even if the defect is formal or fatal in other words is said that if the ‘formal’ defect is going to fail the suit, and the defect is styled as ‘fatal’ because that would equally cause fatal to the suit. The Court below failed to see the Commissioner’s report that the entire extent of Acs.02-05 guntas of land is Sy.No.340 situated at Thondalvai Village, Narketpally Mandal, Nalgonda District is now under the encroachment of the respondents-defendants towards Eastern portion of his land, on the Western portion of their land, now in occupation of Acs.02-30 guntas for recovery of possession.

3.2. The Court below came to a conclusion that when the nature of formal defect whether it can be amended or not is not established without examining Advocate Commissioner and did not permit the petitioners to withdraw the suit. The Court below ought to have allowed the petition on payment of cost instead of refusing for withdrawal of the suit in view of the Commissioner’s report as the basic structure of the suit is changed which has become fatal. Counsel to substantiate his contention has relied on the decisions in the cases of (1) Anil Kumar Singh Vs. Vijay Pal Singh and Others , (2018) 12 SCC 584 (2) Pillakathuku Subbarathnam and another Vs. Executive Officer, Polathala Malleswaraswamy Temple, Ganganapalli Village, Kadapa District and Others , 2005 (4) ALT 423 (S.B.), (3) Telugu Chinna Thirupathaiah Vs. Boya Nadipi , 2013 (6) ALT 463 (S.B.), (4) Reshavani @ Reshavena Ailaiah Vs. Macherla Chinna Narasaiah @ Narsinga Rao and Others , 2018 (3) HLT 132 and prayed to set aside the impugned order.

4. Learned counsel for the respondents submits that the petitioners have filed the application seeking permission of the Court to withdraw the suit at the stage of arguments, the learned trial Court has properly appreciated the facts of the case and the petitioners have not made out any ground for withdrawal of the suit and rightly dismissed the application, no interference is called for and prayed to dismiss the CRP.

5. Power of the High Court under Article 227 is supervisory and is exercised to ensure courts and tribunals under its supervision act within the limits of their jurisdiction conferred by law. This power is to be sparingly exercised in cases where errors are apparent on the face of record, occasioning grave injustice by the court or tribunal assuming jurisdiction which it does not have, failing to exercise jurisdiction which it does have, or exercising its jurisdiction in a perverse manner: (See K.Valarmathi and Others Vs. Kumaresan, 2025 SCC OnLine SC 985).

6. Petitioner No.1-plaintiff has filed suit for recovery of possession of Acs.02-05 guntas of land in Sy.No.340/5 situated at Thondalvai Village of Narketpally Mandal, Nalgonda District against the respondents-defendants. Petitioner No.1-plaintiff No.1 has earlier filed OS.No.291 of 2001 seeking relief of perpetual in