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2017 (1) TMI 1753 - SC - Indian LawsDeclining the leave to the Appellants to withdraw the suit - HELD THAT - In the present case the Appellants have filed the suit describing the suit property as Survey No. 192/9 but the Respondents are said to have transferred the patta for the suit property settling as Survey No. 192/14. The defect in the survey number of the suit property goes to the very core of the subject matter of the suit and the entire proceedings would be fruitless if the decree holder is not able to get the decree executed successfully and thus the said defect will constitute to be a formal defect within the meaning of Order XXIII Rule 1(3)(a) Code of Civil Procedure. In the facts and circumstance of the case the trial court considered the allegation set out in the application as a ground for withdrawal. The view taken by the trial court that the suit suffered from a formal defect to allow the Appellants to withdraw the suit with permission to institute a fresh suit is correct. The High Court was not right in interfering with the discretion exercised by the trial court permitting the Appellants to withdraw the suit with liberty to file a fresh suit. The order of the trial court is restored with modification to the effect that the cost imposed on the Appellants is enhanced from Rs. 3, 000/- to Rs. 10, 000/- - appeal allowed.
Issues:
Appeal against High Court order declining leave to withdraw the suit. Analysis: 1. The appeal arose from the High Court's order declining leave to the Appellants to withdraw the suit. The Appellants' case revolved around the suit property being ancestral, purchased by them under a Power of Attorney, and facing interference from the Respondents. The Tahsildar confirmed the Appellants' possession, but the patta was transferred to the Respondents' father. Subsequently, the Respondents transferred the patta to their son, leading to confusion over the survey number of the property. 2. The Appellants sought to withdraw the suit under Order XXIII Rule 1(3) CPC, citing the change in survey number and the Inam Settlement Deed executed by the Respondents. The trial court allowed the withdrawal, but the High Court set it aside, stating the Appellants failed to establish a "formal defect" or "sufficient grounds." The High Court emphasized that the Appellants participated in the trial extensively before seeking withdrawal abruptly. 3. The Appellants argued that the change in survey number and the settlement deed created confusion, justifying withdrawal under Order XXIII Rule 1(3) CPC. The Court noted that withdrawal with permission to file a fresh suit is discretionary and must be based on the existence of a formal defect or sufficient grounds. The Court cited the duty to prevent abuse of the legal process and the need for satisfaction on formal defects or grounds before allowing withdrawal. 4. Referring to the case law, the Court highlighted the importance of establishing formal defects or sufficient grounds before permitting withdrawal. The defect in the survey number was deemed a formal defect affecting the core of the suit. The Court concluded that the trial court's decision to allow withdrawal was correct, and the High Court erred in interfering with this discretion. 5. The Court set aside the High Court's order, restoring the trial court's decision with a modification to enhance the costs imposed on the Appellants. The costs were increased from Rs. 3,000 to Rs. 10,000. The appeal was allowed without any additional costs, considering the substantial progress made in the suit before the withdrawal application was filed. This detailed analysis covers the issues involved in the legal judgment, the arguments presented, the legal principles applied, and the final decision rendered by the Supreme Court of India.
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