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Judgment
[1] Heard Mr. P. Chakraborty, learned counsel appearing for the petitioner as well as Ms. P. Dhar, learned counsel appearing for the respondents.
[2] This is a petition under Article 227 of the Constitution of India questioning the legality of the order dated 14.08.2019 delivered in TS 3 of 2018 by the Civil Judge, Senior Division, Court No.2, Gomati District, Udaipur. The brief fact that is relevant for purpose of consideration of the challenge is that the petitioner had filed an application under Order 23 Rule 1 (3) (a) of the CPC for withdrawal of the suit with liberty to file afresh inasmuch as, according to the plaintiff, he found in the plaint "some formal defects". Those cannot be rectified by way of amendment of the plaint and as such the prayer made for withdrawal of the suit with liberty to file afresh. The respondents, the defendants in the suit, raised serious objection by stating that that was a ploy to have a space to sell the suit land and to avoid the effect of lis pendens, though not worded likewise. After hearing the parties, the Civil Judge, Senior Division, Court No.2, Gomati District, Udaipur by the order dated 17.08.2019 which is challenged herein has observed as follows:
"Plaintiff has absolute right to abandon his suit. However, as per the provision of Order XXIII Rule 1(3) (a) CPC to get the liberty to institute fresh suit on the same subject matter the plaintiff has to satisfy the judicial conscience that his suit would fail for some formal defect or that there are sufficient ground for allowing him to institute a fresh suit for the subject-matter of a suit or part of a claim. Formal defect means a defect of form prescribed by rules of procedure and not of substance touching the merit of the case. Erroneous description of suit land and doubt of the plaintiff regarding sale of share of land by defendant No.1 as argued, cannot be said to be a formal defect."
[3] No other ground did attract the Civil Judge, Senior Division to allow the petitioner withdraw the suit with liberty as sought. Accordingly, he dismissed the suit by the said order.
[4] Mr. P. Chakraborty, learned counsel appearing for the petitioner has at the outset submitted that he has instruction not to press on the condition for granting liberty for purpose of withdrawal of the suit. Taking the oral statement on record as made by Mr. P. Chakraborty, learned counsel for the petitioner, when this court asked Ms. P. Dhar, learned counsel whether they would persist with their objection, she has fairly submitted that if no condition viz. seeking liberty to file a fresh suit is insisted, the respondents will not have any objection.
Having appreciated the submission made by the learned counsel for the parties, this court finds no difficulty in allowing the petitioner to withdraw his suit, but it is made abundantly clear that no liberty is being granted by the court to file a fresh suit.
The court of the Civil Judge, Senior Division, Court No.2, Gomati District, Udaipur shall pass the formal order in terms of this order.
Hence, this petition stands partly allowed. The impugned order is set aside. There shall be no order as to costs.
A copy of this order be sent to the Civil Judge, Senior Division, Court No.2, Gomati District, Udaipur, forthwith.