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Supreme Court Of India

(From : Madras)*

Hon'ble Judge(s): Dipak Misra, R. Banumathi , JJ

Civil P.C. (5 of 1908) , O.23 R.1(3)(a)— Withdrawal of suit - Defect in survey number of suit property - Constitute 'formal defect' @page-SC686within meaning of O.23, R.1(3)(a) - Withdrawal, allowed.2015 (2) Mad LW 360, Reversed.Interpretation of Statutes - Word 'Sufficient ground' in O.23, R.1(3)(b) of Civil P. C. - Interpretation of. As per Order XXIII, Rule 1(3), CPC, suit may only be withdrawn with permission to bring a fresh suit when Court is satisfied that suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, plaintiff must make out a case in terms of Order XXIII, Rule 1(3)(a) or (b), CPC and must ask for leave. Court can allow application filed under Order XXIII, Rule 1(3), CPC for withdrawal of the suit with liberty to bring a fresh suit only if condition in either of clauses (a) or (b) that is, existence of a 'formal defect' or 'sufficient grounds'. Principle under Order XXIII, Rule 1(3), CPC is founded on public policy to prevent institution of suit again and again on same cause of action. In terms of Order XXIII, Rule 1(3) (b) where the court is satisfied that there are sufficient grounds for allowing plaintiff to institute a fresh suit, the Court may permit the plainti....