- (1.)Heard learned counsel, Mr. D.R. Choudhury for the petitioner and learned senior counsel, Mr. A.K. Bhowmik, assisted by learned counsel, Ms. M. Choudhury for the respondents.
(2.)The petitioner as plaintiff instituted Title Suit No.4 of 2014 in the Court of Civil Judge, Junior Division, Amarpur seeking declaration of tile and recovery of khas possession of the suit land described in the Schedule of the plaint. The defendant -respondents appeared but did not file any written statement and therefore the suit was directed to be heard ex parte. While it was fixed for recording evidence of the plaintiff, on 21.01.2016, the plaintiff made an application seeking withdrawal of the suit with a liberty to file a fresh suit after removal of some formal defect, which cannot be otherwise cured. The application was filed under Order XXIII Rule 1 of CPC. The learned trial Judge on 21.01.2016 allowed withdrawal of the suit but debarred institution of a fresh suit by the plaintiff. The impugned order dated 21.01.2016 reads as follows:
"Ld. Advocate on behalf of plaintiff, Smt. S. Ghosh is present along with the Plaintiff Sri Rabindra Das. Ld. Counsel for the Plaintiff also filed a petition to withdraw the suit Under Order 23 Rule 1 on verification. Perused the petition. Considered. An application of plaintiff is hereby allowed with a stipulation that he will not institute a fresh suit for the subject matter of the suit/part of the claim. Thus the case is hereby disposed of un -contest. Make necessary entry into the TR. ANNOUNCED."

(3.)It is submitted by learned counsel, Mr. Choudhury that the plaintiff filed the petition under Order XXIII Rule 1 read with Section 151 of CPC praying for withdrawal of the suit on the ground that there were formal defect which cannot be removed by way of amendment of the plaint and that the suit cannot be properly adjudicated unless the plaintiff is allowed to withdraw the suit with a liberty to file a fresh suit. But he has fairly admitted that what was those formal defect that was not stated in the petition. It is also submitted by learned counsel, Mr. Choudhury that it is a drafting by a mofussil lawyer and the reason has not been assigned properly but the trial Court while allowing withdrawal of the suit would simultaneously allow the plaintiff to institute a fresh suit on the same cause of action, or otherwise, if the trial Court was not satisfied it would not allow the withdrawal of the suit.