ORDER

The plaintiffs in O.S.No.307 of 2015 on the file of Principal Sub Court, Karur are the revision petitioners herein.

2.The suit was instituted seeking declaration that the suit mentioned sale deeds are null and void. In the said suit, the revision petitioners filed I.A.No.1 of 2022 seeking withdrawl of the suit with liberty to file a fresh suit on the same cause of action. The Court below vide order dated 10.02.2023 dismissed the IA. Questioning the same, this Civil Revision Petition came to be filed.

3.The learned counsel appearing for the revision petitioners submitted that the withdrawl has been sought to facilitate filing of a fresh suit by addition of parties and properties. In the affidavit filed in support of I.A.No.1 of 2022, few other reasons such as valuation and payment of Court fees have been set out. The learned counsel relied on the decisions reported in (2000) 5 SCC 458 (K.S.Bhoopathy & Others Vs Kokila & Others) and (2017) 5 SCC 63 (V.Rajendran & Another Vs Annasamy Pandian (Dead) Through legal representatives Karthyayani Natchiar)

in support of this contention. He called upon this Court to set aside the impugned order and grant relief as prayed for.

4.Per contra the learned counsel appearing for the contesting respondents submitted that the impugned order is well reasoned and that it does not warrant interference.

5.I carefully considered the rival contentions and went through the materials on record.

6.Order 23 Rule 1(3) is as follows:

“3.Compromise of suit.—Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfied the plaintiff in respect to the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]”

The aforesaid provision has been considered in quite a few decisions. For abandoning a suit, permission is not required. But leave is required if the plaintiff wants to institute a fresh suit on the same cause of action.

7.Before granting leave, the Court must be satisfied that on account of formal defect, the suit is bound to fail. Permission can be granted if the Court is satisfied that there are sufficient grounds. The expression “formal defect” refers to defect in procedure. The Hon'ble Supreme Court in the decision reported in (2017) 5 SCC 63 (V.Rajendran & Another Vs Annasamy Pandian (Dead) Through legal representatives Karthyayani Natchiar) had held as follows:

“10. In K.S.Bhoopathy and Ors. v. Kokila, it has been held that it is the duty of the Court to be satisfied about the existence of "formal defect" or "sufficient grounds" before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action.

Though, liberty may lie with the Plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the "formal defect" or "sufficient grounds", such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the Plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the Plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order 23 Rule 1(3) CPC, the Court must be satisfied about the "formal defect" or "suff