Order 23 Rule 1 of C.P.C. seeking permission to withdraw the suit with liberty to file a fresh suit against the legal heirs of the defendant No.1. = No permission to withdraw the suit at the time of arguments after completion of Evidence = Having regard to the admitted fact that the legal representatives of the deceased defendant No.1 were brought on record long back as defendants 3 to 6 and thereafter they filed a written statement and have been contesting the suit, even assuming that the suit which was initially filed against a dead person suffered from any defect, in my considered opinion the same does not amount to a formal defect on account of which the suit must fail. Since the notice sent to the defendant No.1 prior to the institution of the suit itself was returned unserved with an endorsement 'addressee died', the failure of the plaintiff to make a proper claim impleading the necessary parties cannot be termed as a formal defect. As expressed above, for granting leave under Rule 3 (1) of Order 23, the Court must satisfy itself as to existence of the conditions specified therein. Since the plaintiff failed to make out any case to show that the defect pleaded by her is a formal defect within the meaning of Rule 1 (3) (a) of Order 23 nor any other sufficient grounds could be shown for permitting the plaintiff to withdraw the suit with leave, the Court below cannot be held to have committed any error in declining to grant the permission for withdrawal of the suit with liberty to institute a fresh suit on the same cause of action. The Court below was also justified in observing that there were no bona fides in the petition having regard to the fact that the suit was conducted for about 9 years and even the arguments on behalf of the plaintiff were completed. For the aforesaid reasons, the order under Revision cannot be held to have suffered from any error of fact or law apparent on the face of the record. The discretion exercised by the Court below on application of mind to the facts and circumstances of the case warrants no interference by this Court. Accordingly, the Civil Revision Petition is dismissed.

THE HON'BLE Ms. JUSTICE G. ROHINI    
CIVIL REVISION PETITION No.2464 OF 2011    

14-07-2011

Smt. G. Manujla

1.Vangala Mallaiah (Died per LRs)

Counsel for the petitioner:Sri A. Ravinder Reddy

Counsel for the respondents :---------

:ORDER :

        The Revision petitioner is the plaintiff in O.S.No.1537 of 2001 on the
file of the Court of the II-Addl. Junior Civil Judge, Rangareddy District. The
suit was initially filed against the respondents 1 and 2 herein seeking
declaration of title  in respect of the plaint  schedule property and recovery
of possession.
        The respondents 3 to 5 herein  were subsequently brought on record as the
defendants 3 to 5 by order dated 12.10.2006  as the legal representatives of the
deceased defendant No.1  Similarly, the respondent No.6 herein /defendant No.6
was impleaded to the suit by order dated 30.09.2010 in I.A.No.1666 of 2009.
   While the suit was coming up for arguments, the revision petitioner/plaintiff
filed I.A.No.428 of 2010 under Order 23 Rule 1 of C.P.C. seeking permission to
withdraw the suit with liberty to file  a  fresh suit  against the legal heirs
of the defendant No.1.  The said application was opposed by the
respondents/defendants and the Court below after hearing both parties dismissed
the same by order dated 29.04.2011. Aggrieved by the said order, the present
Civil Revision Petition is filed by the plaintiff.
        I have heard the learned counsel for the petitioner and perused the
material available on record.
        In the affidavit filed in support of I.A.No.428 of 2011, it was stated
that though the defendant No.1 died prior to filing of the suit, under a bona
fide mistake the suit was instituted against the dead person and therefore it is
necessary to institute a fresh suit against the legal heirs of the deceased  1st
defendant  for the relief of declaration of title and recovery of possession. It
was also stated that in fact the legal notice sent to the defendant No.1 prior
to institution of the suit was returned with a postal endorsement 'addressee
died', however they were under a bona fide impression that the said notice was
returned unserved and that she came to know about the death of the defendant
No.1 only when the suit summons were returned with an endorsement that the
defendant No.1 died.
        The Court below while observing that the petition, which was filed at the
fag end of the proceedings, was not bona fide dismissed the application.
The learned counsel for the petitioner vehemently contended that since the
plaintiff wanted to withdraw her own suit, no prejudice would  be  caused to the
rights of the defendants and therefore the Court below committed a grave error
in dismissing the application.  While relying upon a decision of this Court in
P. SUBBARATHNAM v. E.O., POLATHALA MALLESWARASWAMY TEMPLE, KADAPA1, the learned                    
counsel also contended that the permission for withdrawing the suit with liberty
to file a fresh suit shall be considered by the Courts  liberally.
        Order 23 Rule 1 of C.P.C. which provides for withdrawal of suit, to the
extent it is necessary for the present case reads                  as under:
"1. Withdrawal of  suit or abandonment of part of claim
(1)             At any time after the institution of  suit, the plaintiff may as
against all or any of the defendants abandon his suit or abandon a part of his
claim :
      PROVIDED that where the plaintiff is a minor or other person to whom the
provisions contained in rules 1 to 4 14 of Order XXXII extend, neither the suit
nor any part of the claim shall be abandoned without the leave of the court.
(2)             An application for leave under the proviso to sub-rule (1) shall be
accompanied by an affidavit of the next friend and also, if the minor or such
other person is represented by a pleader, by a certificate of the pleader to the
effect that the abandonment proposed is, in his opinion, for the benefit of the
minor or such other person.
(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.
(4)             Where the plaintiff,--
(a)             abandons any suit or part of claim under sub-rule (1), or
(b)             withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3),
        he shall be liable for such costs as the court may award and shall be
precluded from instituting any fresh suit in respect of such subject matter  or
such part of the claim.
(5)             Nothing in this rule shall be deemed to authorize the court to
permit one of several plaintiffs to abandon a suit or part of a claim under sub-
rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim,
without the consent of the other plaintiffs."

        A reading of Rule 1 (3) of Order 23 makes it clear that satisfaction of
the Court that the suit must fail by reason of some formal defect or that there
are sufficient grounds for allowing the plaintiff to institute a fresh suit is
mandatory for grant of  permission to institute a fresh suit on the same cause
of action.
        In the present case,  the plaintiff/revision petitioner sought permission
of the Court for withdrawal of suit with liberty to file a fresh suit on the
ground that the suit was filed initially against a dead person and therefore she
was advised to file a fresh suit against the legal heirs of the deceased
defendant No.1.
        Admittedly notice sent to the defendant No.1 prior to institution of the
suit was returned unserved with an endorsement 'the addressee died'.  The said
returned cover was produced in evidence by the plaintiff herself as Ex.A-6.   It
is also relevant to note that the suit summons sent to the defendant No.1 were
returned with an endorsement  '1st defendant died' and thus the defendants 3 to
5 were brought on record as legal representatives of the deceased 1st defendant.
Thereafter  the entire trial was over and even the arguments on behalf of the
plaintiff were completed. At that stage, the plaintiff sought permission to
withdraw the suit stating that the suit if proceeded on the same pleading may
result in dismissal and therefore she was advised to  institute a fresh suit
against the legal heirs of the deceased defendant No.1, i.e., defendants 3 to 6.
        Having regard to the admitted fact that the legal representatives of the
deceased defendant No.1 were brought on record long back as defendants 3 to 6 
and thereafter they filed a written statement and have been contesting the suit,
even assuming that the suit which was initially filed against a dead person
suffered from any defect, in my considered opinion the same does not amount to a
formal defect on account of which the suit must fail.     Since the notice sent
to the defendant No.1 prior to the institution of the suit itself was returned
unserved with an endorsement 'addressee died', the failure of the plaintiff to
make a proper claim impleading the necessary parties cannot be termed as a 
formal defect.
        As expressed above, for granting leave under Rule 3 (1) of Order 23, the
Court must satisfy itself  as to existence of the conditions specified therein.
Since the plaintiff failed to make out any case to show that  the  defect
pleaded by her  is a formal defect within the meaning of Rule 1 (3) (a) of Order
23 nor any other sufficient grounds could be shown for permitting the plaintiff
to withdraw the suit with leave, the Court below cannot be held to have
committed any error in declining to grant the permission for withdrawal of the
suit with liberty to institute a fresh suit on the same cause   of action.
The Court below was also justified in observing that there were no bona fides in
the petition having regard to the fact that  the suit was conducted for about 9
years and even the arguments on behalf of the plaintiff were completed.   For
the aforesaid reasons, the order under Revision cannot be held to have suffered
from any error of fact or law apparent on the face of the record. The discretion
exercised by the Court below on application of mind to the facts and
circumstances of the case warrants no interference by  this Court.
        Accordingly, the Civil Revision Petition is dismissed.
No costs.

?1 2005 (5) ALD 75