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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Tuesday, March 3, 2015

Order XXIII Rule 1 CPC for permission to withdraw the present suit with liberty to file a fresh comprehensive suit. - the plaintiff has to satisfy atleast one of the two requirements mentioned in Rule 1(3) of Order XXIII CPC. The petitioner has failed much less proved that the suit has suffered from formal defect. Hence, the requirement under Order XXIII Rule 1(3)(a) is not satisfied. -2015 A.P. msklawreports



 Under Order XXIII Rule 1(3) CPC, where the Court is satisfied that
by reason of some formal defect or 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 permit the plaintiff to withdraw the suit
with liberty to institute a fresh suit in respect of the subject matter of
such suit or such part of the claim.
      In order to succeed in an application filed for withdrawal of the
suit with liberty to file a fresh suit, the plaintiff has to satisfy atleast one
of the two requirements mentioned in Rule 1(3) of Order XXIII CPC.
The petitioner has failed much less proved that the suit has suffered
from formal defect.  Hence, the requirement under Order XXIII Rule
1(3)(a) is not satisfied.  As regards Clause-(b) of sub-rule (3) of Rule 1,
except raising a vague plea that the defendants have invented new
concepts, the petitioner has not explained as to what those concepts
were and whether they constitute sufficient ground to allow them to
withdraw the suit with liberty to file a fresh suit on the vague pleadings
as put forth by the petitioner.  The lower Court is therefore justified in
dismissing the application filed by the petitioner.-2015 A.P. msklawreports

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