Full Judgment
K. Thankappan, J.
1. The first counter petitioner in I.A. No. 1622 of 2001 in O.S. No. 88 of 2001 on the file of the Sub Court, Thodupuzha is the revision petitioner.
2. The above suit was filed for declaration of title and right of the plaintiff over the plaint schedule properties and for a temporary injunction restraining the defendants from trespassing into the plaint B schedule property and destroying the boundary walls and the improvements in the property. I.A. No. 1622 of 2001 was filed by the plaintiff in the suit seeking to withdraw the suit with permission to file a fresh suit on the same cause of action.
3. As per the plaint averments, the respondents in I.A. No. 1622 of 2001 trespassed into 12 cents of land out of the decree schedule property owned and possessed by the plaintiff. While the suit was pending, an application was filed for temporary injunction which was dismissed by the court below finding that part of the property in question was in the possession of the defendant. Thereafter, the plaintiff filed the above application under Order XXIII Rule 1(3) C.P.C. for withdrawing the suit with permission to file a fresh suit. The court below allowed the application against which this Civil Revision Petition is filed.
4. The learned Counsel appearing for the revision petitioner submits that the order of the court below is irregular and not in accordance with the provisions of Order XXIII Rule 1 C.P.C. According to the learned Counsel, by allowing the plaintiff to withdraw the suit with permission to file a fresh suit, the court below has violated the mandatory provisions contemplated in Rule 1 of Order XXIII C.P.C. and that such permission can be granted only if the grounds urged comes under Rule 3(1)(a) of Order XXIII C.P.C. and justified under Clause (b) of Sub-rule(l) of Rule 3 of Order XXIII C.P.C. To substantiate his contention, learned Counsel placed reliance on the decisions of the Apex Court reported in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and Ors. : [1987]1SCR200 and Upadhyay and Co. v. State of U.P. : AIR 1999 SC509 .
5. Heard the learned Counsel appearing for the respondents. According to the learned Counsel, the order passed by the court below by which the plaintiff was allowed to withdraw the suit with permission to file fresh suit is within the purview of Order XXIII Rule 1(3) C.P.C. and that there was no violation of any provisions of the Code of Civil Procedure. Learned Counsel also submits that as per Sub-rule (2) of Rule 2 of Order II C.P.C, the plaintiff can file a fresh suit with the leave of the Court and that allowing the plaintiff to withdraw the suit with permission to file a fresh suit will not make any difference as both the powers are contemplated in the Code of Civil Procedure.
6. The question to be decided in the Civil Revision Petition is with regard to the power of the court to give permission to file a fresh suit by withdrawing the earlier suit and whether such permission would affect the nature of the suit, the relief sought for in the suit and the subject matter of the suit.
7. By filing an amendment with the leave of the Court, the plaintiff can add or deduct any portion of the relief claimed in the suit. But allowing the plaintiff to withdraw the suit with permission to file fresh suit can only be on the ground urged under Order XXIII Rule 1(3) C.P.C. Order XXIII Rule 1(3) reads as follows:
1. Withdrawal of suit or abandonment of part of claim.-
(1) XXX XXX XXX(3) Where the Court is satisfied
(a) that a suit must fail by reason of some formal defect, or
(b) 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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
8. A reading of the above provision would show that the court can allow withdrawal of a suit with permission to file a fresh suit for rectifying any formal defect found in the suit on account of which the suit may fail. Clause (b) of Sub-rule (3) of Rule 1 of Order XXIII C.P.C. says that if the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of a claim, the court can grant the plaintiff permission to withdraw the suit with liberty to institute a fresh suit. Hence, permission of the court can be sought for withdrawing the suit and if any permission is given to file a fresh suit, it shall defeat the purpose of that clause and it will be against public policy. In the judgment reported in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and Ors. : [1987]1SCR200 , the Apex Court had categorically held that the principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. The same view was taken in the decision reported in Upadhyay & Co. v. State of U.P. : AIR 1999 SC509 .
9. If the court permits withdrawal of a suit and allow to file fresh suit on the same subject matter by adding any relief, the court shall see that there is no repetition of the same claim so as to avoid the question of res judicata. In the present case, the plaintiff had already filed an application for injunction which was dismissed by the court below. Immediately thereafter, the plaintiff filed I.A. No. 1622 of 2001 seeking withdrawal of the suit with permission to file a fresh suit. The plaintiff can add or deduct any relief only with the leave of the court. In the above circumstances and in the light of the dictum laid down in the decisions referred to above, this Court is of the view that the impugned order is liable to be set aside. The impugned order is accordingly set aside. The court below shall consider afresh the application filed by the plaintiff in so far it seeks withdrawal of the suit alone.
The Civil Revision Petition is allowed as above. There will be no order as to costs.