JACOB Vs. STATE BANK OF TRAVANCORE

JUDGEMENT

(1.) Revision petitioner filed O.P. 352 of 1990 to transfer five Original Suits pending before the Sub Court, Parur to the III Additional Sub Court, Ernakulam. He filed a petition to withdraw the Original Petition with liberty to file another O.P. The learned District Judge granted the request to withdraw the O.P. without liberty to file another O.P. The rejection of the permission to file another O.P. is assailed in the Civil Revision Petition.

(2.) Counsel for the revision petitioner submitted that there is a formal defect in the Original Petition as the prayer is to transfer five Original Suits. R.57 (3) of the Civil Rules of Practice provides that separate applications have to be presented in respect of each suit, appeal or other proceedings of which transfer is sought. As a single Original Petition was filed to transfer five Original Suits it suffered from a formal defect.

(3.) The question that arises for consideration is whether a Court while allowing . the plaintiff to withdraw the suit under O.23 R.1(3) can refuse him liberty to file fresh suit. O.23 R.1(3) C.P.C. enables the Court to grant plaintiff permission to withdraw the suit or such part of the claim with liberty to institute a fresh suit if it finds that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing him to institute a fresh suit for the subject matter of a suit or part of a claim. From a reading of Sub Rule (3) it cannot be held that the Court is entitled to pass a composite order allowing withdrawal of the suit and at the same time rejecting permission to file fresh suit. As the petition under Sub Rule (3) contains two specific prayers Court cannot allow one and" disallow the other as both the prayers are inextricably interconnected so far as the plaintiff is concerned. When an application is made under O.23 R.1 (3) the Court cannot discard the request of the plaintiff to allow him to file a fresh suit and consider it as an application under Sub Rule (1) where there is no prayer to file a fresh suit Of course, it is open to the Court to reject the petition in its entirety and allow the suit to proceed with or allow the prayer without any reservations. Sub Rule (3) envisages that when the conditions are satisfied the Court has to grant permission to withdraw from the suit or such part of the claim with liberty to institute fresh suit in respect of the subject matter of such suit or such part of the claim. The Court cannot allow the suit to-be withdrawn and deny the liberty to file fresh suit. In Jotirmoy Goswamy v. Guru Gobinda Goswamy (AIR 1928 Calcutta 273) the Calcutta High Court held that if the Court does not consider that the application for withdrawal with liberty to bring a fresh suit should not be granted, the proper course is to dismiss the application and then go on with the case. The Patna High Court in Shamanandan Prasad v. Mulchand Ram (AIR 1921 Patna 360) held that on an application for permission to withdraw a suit with liberty to bring a fresh suit, the Court has no jurisdiction merely to grant such permission without granting also leave to bring a fresh suit. An application under O.23 R.1(3) can be construed only as an indivisible request and the Court cannot bifurcate it and allow the withdrawal and refuse liberty to file fresh suit.