V. RAJENDRAN AND ANR. versus ANNASAMY PANDLAN (D) THR. LRS. KARTHYAYANL NATCHIAR

Citation: [2017] 2 S.C.R. 508 · Decided: 24-01-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed
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(2017] 2 S.C.R. 508 
V. RAJENDRAN AND ANR. 
v. 
ANNASAMY PANDlAN (D) THR. LRS. KARTHYAYANl 
NATCHIAR 
(Civil Appeal No. 861 of2017) 
JANUARY 24, 2017 
[DIPAK MISRA AND R. BANUMATHI, JJ.] 
Code of Civil Procedure, 1908 - 0. XXJII, r. I (3){a) -
Withdrawal of suit - On ground of 'formal defect" in suit -
Appellants filed suit for permanent injunction describing suit 
property with a defective survey number - Thereafter, during trial, 
appellant filed application u/O. XXIII, r. J (3) for withdrmval of the 
suit - Propriety of - Held: Defect in the survey number of the suit 
property goes to the very core of the subject matter of the suit and 
entire proceedings would be fruitless if the decree holder is not 
able to get the decree executed successfi1lly and thus, the said defect 
will constitute to be a formal defect' within the meaning of 0.XXJJJ, 
r. I (3), CFC - Hence, case of appellant would fall u!O.XXIII, r. J (3)(a). 
Costs - Enhancement of - Appellants filed suit for permanent 
injunction in 2004 - After ten years, an application was filed by 
appellants u!O.XXIII, r. I (3), CFC seeking withdrawal of the suit -
Held: Application was filed after substantial progress was made in 
the suit - In such circumstances, in instant case, while permitting 
appellant to withdraw the suit, costs of Rs.3000/- awarded by the 
trial court enhanced to Rs.10, 000/-. 
Allowing the appeal, the Court 
HELD: 1. Order XXIII Rule 1(3) CPC lays down grounds 
on which a Court may allow withdrawal of suit. As per Order XXIII 
Rule 1(3) CPC, suit may only be withdrawn with permission to 
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bring a fresh suit when the Court is satisfied that the suit must 
fail for reason of some formal defect or that there are other 
sufficient grounds for allowing the plaintiff to institute a fresh 
suit. The power to allow withdrawal of a suit is discretionary. In 
the application, the plaintiff must make out a case in terms of 
Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. 
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508 
V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D) 
THR. LRS. KARTHYAYANI NATCHIAR 
The Court can allow the application filed under Order XXIII Rule 
1 (3) CPC for withdrawal of the suit with liberty to bring a fresh 
suit only if the condition in either of the clauses (a) or (b) that is, 
existence of a "formal defect" or "sufficient grounds". The 
principle under Order XXIII Rule 1 (3) CPC is founded on public 
policy to prevent institution of suit again and again on the same 
cause of action. [Para 9] [513-D-H; 514-A] 
2. When au application is filed under Order XXIll Rule 
1(3) CPC, the Court must be satisfied about the "formal defect" 
or "sufficient grounds''. "Formal defect" is a defect of form 
prescribed by the Rules of procedure such as, want of notice 
under Section 80 CPC, improper valuation of the suit, insufficient 
court fee, confusion regarding identification of the suit property, 
mis-joinder of parties, failure to disclose a cause of action etc. 
"Formal defect" must be given a liberal meaning which connotes 
various kinds of defects not affecting the merits of the plea raised 
by either of the parties. [Para 10] [514-C-E] 
3. In terms of Order XXIII Rule 1(3) (b) CPC where the 
court is satisfied that there are sufficient grounds for allowing 
the plaintiff to institute a fresh suit, the Court may permit the 
plaintiff to withdraw the suit. In interpretation of the word 
"sufficient grounds", there are two views: One view is that these 
grounds in clause (b) must be "ejusdem generis" with those in 
clause (a), that is, it must be of the same nature as the ground in 
clause (a) that is formal defect or at least analogous to them; and 
the other view was that the words "other sufficient grounds" in 
clause(b) should be read independent of the words a 'formal 
defect' and clause (a). Court bas been given a wider discretion to 
allow withdrawal from suit in the interest of justice in cases where 
such a prayer is not covered by clause (a). (Para 11] (514-F-G) 
4. 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 aud the entire proceedings would be fruitless if 
the decree holder is .not able to get the decree executed 
successfully and thus, the said defect
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