AI Drafter 
TaxTMI 
TaxTMI 
2000 (5) TMI 1075
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....shing and running a flour mill, on their property and for further injunction restraining them from disturbing the plaintiffs exclusive user of the pathway lying between the properties of the plaintiffs on one side and defendants 1 & 2 on the other. Defendants 1 & 2 in the suit as owners sold portions of their land by separate sale deeds dated 10.8,78 executed in favour of plaintiffs 1 & 2 which were shown in the map attached to the plaint in blue and green colours respectively. The pathway is similarly shown in red colour in the map. It was the case of the plaintiffs that establishment of the proposed flour mill by the defendants 1 & 2 will act as a nuisance and will seriously prejudice the plaintiffs' user of their property on which they have constructed a clinic. Regarding the pathway the case of the plaintiffs is that they have exclusive right of user of the same and the plaintiffs should not be permitted to interfere with their right ia any manner. The defendants I and 2 refuted the claims of the plaintiffs in respect of both, the prayers and contended that the proposed flour mill will in no way act as a nuisance against user of the property by the plaintiffs and that the pl....
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....rned senior counsel submitted that the provision in section 100 CPC makes it mandatory for the Court to formulate the substantial question of law to be examined in appeal before admitting the same. That having not been done in the present ease the application filed under Order XXIII Rule 1(3) CPC was premature. Learned counsel appearing for the plaintiff-respondents on the other hand submitted that the High Court heard both the parties before granting the application for withdrawal of the suit with leave to file fresh suit, and therefore, no exception can be taken to the order that it was premature. It was the further submission, of the learned counsel that Order XXIII Rule 1(3) vests wide discretion in the Court to grant permission for withdrawal of the suit with leave to file a fresh suit and such discretion having been exercised by the High Court in favour of the applicants the order is not liable to be interfered by this Court in exercise of jurisdiction under Article 136 of the Constitution. Order XXIII Rule 1 CPC makes provisions for withdrawal of suit or abandonment of part of claim. Relevant portions of the provision arc extracted hereunder : Order XXIII "Withdrawal a....
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..... Such liberty being granted by the Court enables me plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non sait Therefore on principle an application by a plaintiff under sub-rule 3 cannot be treated on par with an application by him in excercise of the absolute liberty given to him under sub-rule 1, In (he former it is actually a prayer for concession from the Court after satisfying the Court regarding existences of the circumstances justifying the grant of the such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit roust fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause....
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....which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs/ appellants in accordance with the provisions of clause (3) of Order 23 Rule 1 of the Code." Recently in the case of Executive Officer Arthaneswarar Temple v. R. Sathyamoorthy & Ors., [1999] 3 SCC 115 this Court restated the general principles for dealing with the applications under Order XXIII Rule 1 CPC in the following words : "Various High Courts have rightly held, while dealing with applications under Order 23 Rule 1 CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial court dismissing the suit and if the appellant-plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if....
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....ave prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. One the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial court and the first appellate court it is clear that the plaintiffs realised the weakness ia the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse of Order XXIII Rules 1(3) CPC and filed the application for withdrawal of the suit with leave to file fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of ....