When court should not allow withdrawal of suit with liberty to file fresh suit?

 I have heard the learned counsel for the parties and with their assistance I have gone through the record of the case.

4. Order 23 Rule 1(3) lays down that :-

"(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or
(b) 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,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or 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."

5. A reading of the above provision would show that prayer under Order 23 Code of Civil Procedure can only be granted if the Court is of the opinion that the suit must fail on the ground of some formal defect. Formal defect has not been defined in the Code of Civil Procedure and it will depend upon the facts of each case. I am certain that formal defect has to be understood differently from the suit which is not legally maintainable. The case set up by the plaintiffs-respondents in the trial Court was that on the basis of the agreement, the entire land was sold in their favour and that the defendants are committing breach of agreement. If the time for specific performance of the agreement has not lapsed, the suit was always legally maintainable and if the time for specific performance of the agreement has already expired, the suit was also legally maintainable. In both the eventualities, there is no formal defect in the suit. In this view of the matter, the impugned order cannot be sustained in the eyes of law.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 1923 of 1999

Decided On: 08.03.2001

Jagjit Singh
Vs.
Gursharan Singh

Hon'ble Judges/Coram:
R.L. Anand, J.

Citation: 2002 (1) CIVIL LJ 302

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