Withdrawal with liberty to file fresh suit cannot be refused merely because a second suit was filed earlier.

Order 23 Rule 1(3) CPC permits withdrawal of a suit with liberty to file a fresh suit where the case must fail for a formal defect, and want of statutory notice may qualify as such a defect. The prior filing of a second suit on the same cause of action before seeking permission was treated as a procedural irregularity, not a ground to refuse leave. The court's inquiry is confined to whether the conditions for withdrawal with liberty are satisfied, not to the maintainability of the later suit. Once permission is granted, the earlier bar is lifted and the fresh suit may proceed in the proper forum.

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Issues: Whether permission to withdraw a suit with liberty to file a fresh suit can be refused merely because a second suit on the same cause of action has already been instituted before obtaining such permission.

Analysis: Order 23 Rule 1(3) of the Code of Civil Procedure permits withdrawal of a suit with liberty to institute a fresh suit where the suit must fail by reason of a formal defect. Want of statutory notice was treated as such a defect. The filing of a subsequent suit before obtaining permission was held to be only a procedural irregularity and not a ground to deny relief, because the court's inquiry under the rule is confined to whether the case falls within the rule and not to the validity or maintainability of the later suit. Once permission is granted, the earlier bar is removed and the matter is to be governed by the appropriate proceedings in the fresh suit.

Conclusion: The petitioner was entitled to withdraw the first suit with liberty to file a fresh suit, and the prior filing of the second suit did not preclude grant of such permission.

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