DEBASHIS SINGHA ROY Vs. TARAPADA ROY

JUDGEMENT

(1.) The question involved in this revisional application is whether a partition suit should normally be allowed to be withdrawn with liberty to sue afresh when the plaintiffs alleged that the same suffers from the defect of non-joinder of necessary parties and non-description of the suit lands with particulars as to it's nature, character, boundaries, measurement and areas.

(2.) Order 23 Rule 1(3) of the Code is clear in its terms that where a suit must fail by reasons of some formal defects or where 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, there the court may on such terms as it thinks fit permit the plaintiff to withdraw the suit or such part of claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. This rule is disctinct from res judicata and based on public policy of the law to avoid multiplicity of proceedings. This rule is meant to apply in cases where there is defect in form of the suit and because of such defect the suit will fait or where there are other sufficient grounds for allowing the plaintiff to institute a fresh suit.

(3.) in the case in hand the formal defects and/or the other sufficient grounds pointed out by the plaintiffs for the purpose of withdrawal of the suit with a leave to file a fresh suit for the subject matter of the suit are that the description of the nature and character of the lands sought to be partitioned and the actual and correct areas and boundaries thereof were not furnished and necessary and proper parties have not been impleaded and there was misjoinder of cause of action.