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A.P.S. Bahurudeen And Anr. vs Antony And Ors. on 7 November, 1990

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It may, on such terms as it thinks fit, grant the plaintiffs permission to

withdraw from such suit of such part of the claim with liberty to institute a
fresh suit in respect of the subject matter of such suit or such part of the
claim." Though the Rule refers only to a suit, by virtue of Section 107(2) of the
Code of Civil Procedure, an appellate court is also empowered to permit
withdrawal of the suit at the appellate stage. A Full Bench of this Court in
Balide Kamayya v. Pragada Papayya I.L.R. 40 Mad. 259 : 5 L.W. 558. (F.B.), held
that it is open to an appellate court in proper cases, when reversing the
decree of the lower court, to give the plaintiff leave to withdraw the suit with
liberty to file a fresh suit.

Whether the idea was to liberalise the discretion vested in the court or to
narrow it down, we cannot say at this stage. But, however, the fact remains
that the trend of the decisions in this Court and also in the Allahabad High
Court, as could be gathered from the decision in Abdul Chafoor v. Abdul
Rahman A.I.R. 1951 All. 865 (F.B.), seems to have been to narrow down the
scope of the discretion vested in the court permitting a plaintiff to withdraw
from a suit with liberty to file a fresh suit on the same cause of action. The
tendency does not appear to me to be in consonance with the real object
underlying the amended clause. Sub-clauses (a) and (b) seem to deal with two
different situations, and not with similar or analogous situations. Otherwise
there seems to be no need for having introduced the terms "other and
sufficient" in Sub-clause (b) in contra-distinction from the terms contained in
Sub-clause (a). Some meaning and significance should be attached in the
context in which they appear. The first ground is stated to be the possibility of
a failure of the suit by reason of formal defect. If it was the case that any
other ground shown for withdrawal of the suit with liberty to file a fresh
suit should also be more or less the same or analogous to the formal defect,
then the terms other and sufficient" lose all meaning and significance in the
context.

23. In Nadipatha v. Pedda Venkataraju , Natesan, J. held that a mis-description

or inaccurate description of the property in the plaint is not a formal defect
necessitating the withdrawal of the suit after the trial court has given a
decision in the matter. The learned Judge observed that the appellate court
should be slow and cautious to exercise the powers under Order 23, Rule 1
and permit a defeated plaintiff to withdraw his suit with liberty to file a
fresh suit and reagitate the matter over once again. It was also observed that
when the defect, if any, could be cured by an amendment, the court should
not ordinarily permit the withdrawal of the suit with liberty to institute a
fresh suit.

27. In Khatuna v. Ramsewak Kashinath , it is held that the expression formal

defect' in Clause (a) even if given a wide and liberal meaning, must be
deemed to connote every kind of defect which does not affect the merits of
the case or does not strike at the root of the plaintiffs case. On the facts it is
held that non-joinder of a necessary party is not a formal defect, but it strikes
at the root of the case.
28. An analysis of the above judgments shows that it has been generally
accepted by the courts that permission to withdraw a suit with liberty to file
a fresh suit can be granted if the suit has to fail by reason of a formal defect
or a ground analogous thereto. But, courts are uniform in holding that a
plaintiff who has failed to establish his case on merits, is not entitled to as
right to withdraw the suit and file a fresh suit. On a reading of the two
clauses in Sub-rule (3) of Order 23, Rule 1 of the Code of Civil Procedure, it is
clear that the legislature has advisedly used a distinctly different language.
While Clause (a) refers to the pending suit which must fail by reason of some
formal defect, Clause (b) refers to the suit it is instituted with the leave of the
court. If a matter falls under Clause (a), the court is concerned only with the
question whether the suit must fail by reason of a formal defect. On the other
hand, if Clause (b) is invoked by a party, then the court must address itself to
the question whether there are sufficient grounds for allowing the party to
institute a fresh suit for the same subject matter or part thereof. Hence, in
my view, it is not correct to say that sufficient grounds' should be read
ejusdem generis with 'formal defect or that they should be analogous thereto.
'Sufficient grounds' would cover a wider field and not restricted to a 'formal
defect' or a similar defect. However, when the question arises before an
appellate court after the adjudication of the matter on merits by one court or
two courts, the test will be whether the court is justified in depriving the
defendant of the benefit of a finding rendered in his favour after a full trial. It
is well known that when a court grants leave to file a fresh suit on the
identical cause of action, the withdrawn suit has no existence in the eye of
law. It is not available for any purpose and the parties are relegated to the
same position which they occupied before the suit was brought. Hence, the
court has to consider in each case when an application is filed in the
appellate stage for withdrawing the suit with liberty to file a fresh suit,
whether the defendant should be driven back to original position in which he
was prior to the filing of the suit, even though he has come out successful
after a full trial.