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Judgment
The petitioners, plaintiffs in Title Suit No.11 of 2002, are aggrieved of order dated 02.12.2010 by which their application under Order XXIII Rule 1
and Rule 1(3) CPC r/w section 151 CPC has been rejected.    Â
Section 80 CPC mandates that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be
done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered or left at the office
of the Government/public officer. Sub-section 2 to Section 80 CPC, however, carves out an exception for the urgent and immediate relief against
the Government.Â
There is no limitation provided under Order XXIII Rule 1 CPC for moving an application for withdrawal of the suit. The only limitation is that the
defect on account of which the plaintiff seeks permission of the Court to withdraw the suit must be a formal defect and it should not touch upon the
merits of the matter. Obviously, if trial in the suit has commended and the plaintiff has already examined some of his material witnesses, an application
under Order XXIII Rule 3 CPC is not maintainable.    Â
It is an admitted position that the application dated 04.10.2010 was filed by the plaintiffs seeking leave of the Court to withdraw the suit with
permission to institute a fresh suit after evidence of both the parties was closed. Plea taken by the petitioners that the plaintiff no.1 is an illiterate lady
who had no information about the previous proceedings, would not improve the case of the petitioners inasmuch as, whether a notice under section 80
CPC was sent prior to institution of Title Suit No.11 of 2002 must be known to the plaintiffs before they instituted the suit.    Â
At the stage when the suit was posted for arguments, application under Order XXIII Rule 1(1) CPC was maintainable but not under Order XXIII
Rule 1(3) CPC.
In the above facts, finding no infirmity in the impugned order dated 02.12.2010, the writ petition is dismissed.     Â