2005 (12) TMI 608 - HC - Indian Laws

Summary

Issues:
1. Application under Order 23 Rule 1(3) C.P.C for withdrawal of suit and liberty to file a fresh suit.
2. Granting leave to file a fresh suit on the same cause of action.
3. Whether the Trial Court was right in partly allowing the Petition and declining to grant liberty to file a fresh suit.

Analysis:
1. The Plaintiff filed a Suit for Partition and Separate possession of properties, including one situated in Chennai, before the High Court, which was later transferred to the City Civil Court. During the part-heard stage, the Plaintiff sought to withdraw the Suit under Order 23 Rule 1(3) C.P.C, citing reasons related to the properties' location and jurisdiction issues.

2. The Defendants opposed the withdrawal, arguing that the Plaintiff included the Chennai property in bad faith. The Trial Court allowed the withdrawal but refused to grant liberty to file a fresh suit, citing the belated stage of the application. The Plaintiff challenged this decision, contending that the Court should have either dismissed the Petition entirely or granted permission for a fresh suit.

3. The key legal issue was whether the Trial Court erred in partially allowing the withdrawal of the Suit without granting leave to file a fresh suit on the same cause of action. The Plaintiff argued that the Court's decision violated Order 23 Rule 1(3) C.P.C by splitting the order and causing prejudice. The Third Respondent supported the Trial Court's decision, claiming the Plaintiff's actions were an abuse of process and that the refusal of leave was justified due to the Suit's stage.

4. Legal precedents highlighted the indivisibility of applications under Order 23 Rule 1(3) C.P.C, emphasizing that if leave to file a fresh suit is denied, the pending suit should not be dismissed but retained for Trial. The Court should either reject the entire application or allow it in full, without dividing the withdrawal and liberty aspects. The Trial Court's partial allowance of the Petition was deemed incorrect, and the Plaintiff's Revision Petition was allowed, with directions for expedited Trial of the Suit.