1998 (2) TMI 618 - HC - Indian Laws

Petitioner Granted Permission to Withdraw Suit and File Anew; Lack of Statutory Notice Deemed a Curable Formal Defect.

Justice V. Rajagopala Reddy of the AP HC allowed the petitioner to withdraw the initial suit with liberty to file a fresh suit under Order 23 Rule 1(3) ... - Issues:- Application for permission to withdraw a suit with liberty to institute a fresh suit.- Interpretation of Order 23 Rule 1(3) CPC regarding formal defects in a suit.- Consideration of whether the filing of a second suit on the same cause of action precludes the court from granting permission to withdraw the first suit.- Application of the principle of res judicata in the context of seeking permission to withdraw a suit and file a fresh suit.Analysis:The judgment delivered by Justice V. Rajagopala Reddy of the Andhra Pradesh High Court concerns an application for permission to withdraw a suit with liberty to institute a fresh suit. The case revolved around the interpretation of Order 23 Rule 1(3) of the Civil Procedure Code (CPC) regarding formal defects in a suit. The petitioner had filed a suit without issuing a statutory notice, which rendered the suit defective and liable to be dismissed. The petitioner sought to withdraw the suit and filed a fresh suit on the same cause of action before obtaining permission to do so.The primary issue before the Court was whether the filing of the second suit on the same cause of action precluded the Court from granting permission under Order 23 Rule 1(3) CPC to withdraw the first suit. The Court below had held that the provision could not be applied in this case as the petitioner had already instituted a fresh suit without withdrawing the earlier suit and without obtaining permission to file a fresh suit. However, the petitioner argued that the defective nature of the earlier suit, which lacked a statutory notice, fell within the ambit of Order 23 Rule 1(3) CPC, allowing the Court to grant permission to withdraw the suit with liberty to file a fresh suit.Justice V. Rajagopala Reddy analyzed the provisions of Order 23 Rule 1(3) CPC, which permit the Court to grant permission to withdraw a suit if it must fail due to a formal defect, providing the liberty to institute a fresh suit. The Court emphasized that the key consideration was whether the suit must fail due to a formal defect, such as the lack of a statutory notice in the present case. The Court cited precedents, including a decision from the Kerala High Court, to support the view that the filing of a fresh suit before obtaining permission to withdraw the first suit should be considered an irregularity that is curable once permission is granted.Ultimately, Justice V. Rajagopala Reddy held that the petitioner was entitled to withdraw the first suit with liberty to institute a fresh suit on the same cause of action. The Court concluded that the suit already filed for the same cause of action did not obstruct the invocation of Order 23 Rule 1(3) CPC. Consequently, the Civil Revision Petition was allowed, the order of the Court below was set aside, and the petitioner was granted permission to withdraw the initial suit.