2004 (3) TMI 832

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....t the Order dated 19.1.1994 whereby the learned Civil Judge had declined to grant permission to the plaintiff to withdraw the Suit. The plaintiff had filed an application under Order XXXIII Rule 1 and Section 115 of the Code of Civil Procedure, stating therein that the Defendant had raised the preliminary objection to the effect that "the Suit as framed is not maintainable and is barred under Sect....

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....t, a fresh Suit can nevertheless be filed subject to the law of limitation. No doubt the position is different where the Defendant has put in its representation. Order VII Rule 11 enumerates six circumstances in which a Plaint is to be rejected, one of which is that on a perusal of the Plaint, the relief claimed therein is barred by any law. Rule 13 of Order VII clarifies that the rejection of a P....

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....ght to be compensated by way of costs. It also appears to me that the Court cannot dictate the manner in which a Suit should be prosecuted, by directing the plaintiff to carry out amendments to the Plaint. In the present case the Defendant had appeared in the litigation. What if the "formal defect" had been discovered prior to his entering appearance. The plaintiff need not have moved an applicati....

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....lso been drawn to the observations of the Hon'ble Supreme Court in M/s. Hulas Rai Baij Nath Versus Firm K.B. Bass and Co., [1967]3SCR886 where it has been observed that "the language of Order XXXIII, Rule 1, sub-Rule (1), gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh Suit is sought under sub-Rule (2) of that Rule, the plaintiff becomes ....