PROMILA BAKSHI Vs. ASHOK BHATIA

JUDGEMENT

(1.) Vide the impugned order dated 19th July, 2006, the learned Civil Judge (Junior Division) Court No. 2, Kasauli, District Solan has rejected the Application of the petitioners filed under Order 23, Rule 1 (3) of the Code of Civil Procedure for permission to withdraw the pending suit with liberty to file a fresh suit on the same cause of action. Sub-rule (3) of Rule 1 of Order 23 of the Code of Civil procedure reads thus

(2.) By now it is a settled proposition of law that permission to withdraw the suit with liberty to file a fresh suit can be granted to a plaintiff only if one of the two situations or contingencies exist, or are made out, viz. that the suit may not fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action. The existence of both these grounds or even one of them, of course is subject to the satisfaction of the trial Court.

(3.) I have carefully gone through the impugned order as well as the contents of the Application filed by the petitioners for permission to withdraw the suit and find that in so far as the first ground is concerned surely it cannot be said that the suit as instituted suffered from any formal defect. On the own showing of the petitioners the suit as instituted suffered from vital and grave defects of substance, actually very very vital defects of substance and by no stretch of imagination could any of these be called as "formal defects". The learned trial Court has correctly held and with elaborate reference to the contents of the Application and the material on record that the Application filed for granting permission to withdraw the suit was also very vague. I have myself gone through the copy of the Application and fully agree with this opinion of the learned trial Court.