A party can withdraw a civil suit with liberty to file a fresh suit if the likelihood of conflicting decisions exists, not limited to formal defects.

JUDGMENT

This original petition is filed by the plaintiff in O.S. No.90/2014 on the files of Sub Court, Kannur, against the order passed in I.A.No. 781 of 2016, dated 16/06/2017, by which the request made by the petitioner to withdraw the suit with liberty to file a fresh suit under Rule 1(3) Order XXIII of the Civil Procedure Code , 1908 stands rejected. The grievance of the petitioner is that, as a proceeding initiated by the bank is pending before the Debts Recovery Tribunal, if the petitioner parallelly proceeds with the suit proceeding, there is every chance of a conflicting decision in those proceedings.

2. Heard.

3. It is noted that the application file by the petitioner was rejected by the learned Sub Judge for the following reasons:

8. I am in agreement with the stand of respondent no.2. Permission can be granted as prayed for only if the conditions laid down by Order XXIII Rule 1(3) of CPC are satisfied. Pendency of a proceeding before the Debt Recovery Tribunal cannot be construed as a sufficient ground for applying Order XXIII Rule 1(3) of CPC.

9. The petitioner has no case that the plaint suffers from any formal defect. No other sufficient ground is made out.

4. As per Order XXIII Rule 1(3) CPC, a permission to withdraw a civil suit with liberty to institute a fresh suit may be granted not only on account of a formal defect but also for any other sufficient ground. In this case, the apprehension of the petitioner is that when two proceedings are pending before two different authorities there would be every chance of conflicting decisions. In view of the open-ended provision contained in Rule 1(3) Order XXIII CPC, the trial court could have entertained the application so as to avoid such conflicting decisions. For the reasons stated above, I am of the view that I.A. No. 781 of 2016 is liable to be allowed.

In the result, the original petition is allowed, and the impugned order is set aside. The suit is dismissed as withdrawn, and the petitioner is granted liberty to file a fresh suit on condition that the petitioner shall deposit Rs.5000/- (Rupees five thousand only) as costs to the respondents, in the trial court. It is made clear that the deposit of the amount will be a condition precedent for instituting a fresh suit.

Sd/-