- (1.) Heard Sri Mohammad Haneef for the petitioners. The writ petition has been filed against the order dated 27.2.2014 passed by Civil Judge (Senior Division) Court No. 15, Sultanpur, by which application of the petitioners under Order XXIII, Rule 1, C.P.C. for withdrawing the suit with liberty to file a fresh suit, has been rejected.
(2.) The petitioners filed a suit for permanent injunction restraining the defendant respondent from interfering in his possession over the land situated in village Hariharpur Ishapur. After trial, the Trial Court found that although the title of the petitioners was in respect of the land of village Bahadurpur where their house situated but the disputed land situated in village Hariharpur Ishapur which is also proved from the survey report. Therefore the title of the petitioners of the land in dispute has not been established. On this finding the suit has been dismissed. The petitioners filed an appeal from the aforesaid order and in the appeal the petitioners moved an application under Order XXIII, Rule 1, C.P.C. for withdrawal of the suit with liberty to file a fresh suit. The lower Appellate Court found that the application of the petitioners does not fall within the purview of Order XXIII, Rule 1, C.P.C., inasmuch as the suit of the petitioners has not been dismissed on the basis of any formal defect, it was dismissed on merit accordingly, the application of the petitioners under Order XXIII, Rule 1, C.P.C. was not maintainable. Hence this writ petition has been filed.
(3.) The relevant part of Order XXIII, Rule 1, C.P.C. is quoted below: "(3) Where the Court is satisfied- (a) that a suit must fail by reason of some format 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 or 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.";