Court must ensure sufficient grounds exist for withdrawal of a suit before permitting re-filing under Order XXIII Rule 1(3) CPC, safeguarding the rights of defendants and judicial efficiency.

CAV ORDER

8 13-11-2025 This civil revision application is filed against order dated 25.01.2023 passed in the Title suit no. 13 of 2020, CIS no. 71 of 2020 by the Learned Munsif 1^st Madhubani whereby and whereunder permission has been granted to the plaintiff/ opposite party to withdraw the said title suit with liberty to file a fresh suit.

2. Heard the Learned Counsel for the petitioner and respondent.

3. Learned counsel for the petitioner submitted that as per provision of Order XXIII Rule (3)(b) of the Code of Civil Procedure , the sufficient ground for granting permission to institute a fresh suit, after withdrawal of the concerned suit, must be mentioned in the impugned order but the learned court below without mentioning the sufficient ground granted permission to the opposite party to institute a fresh suit.

4. He further submitted that the plaintiff had not disclosed in his petition as to which were the omissions/errors in the Plaint, which were beyond the rectification subsequently by the Plaintiff. Moreover, the “Prarupik Truti” is no ground in view of Order 23 Rule 1(3)(b) of the CPC. The word “Prarupik Truti” is a general and a vague word signifying nothing. It cannot be treated as a substitute of the “sufficient ground”, as statutorily mandate under Order 23 Rule 1(3)(b) СРС. 5. He lastly submitted that the impugned order is vexatious fit to be set aside on the point that it is not fulfilling the mandatory rule of Order XXIII of the CPC and it is also in violation of the authoritative pronouncement, made by the Hon'ble Apex Court in the case of K.S. Bhoopathy and others v. Kokila and others reported in 2000 (5) SCC 458 it has been held:

13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fr