ARIJIT BANERJEE,J. - (1.) By an order dated 8 October, 2015, this Court had permitted the plaintiff to withdraw the suit with liberty to file a fresh suit on the self -same cause of action. In the present application, the defendant no. 14 ('the defendant') prays that the said order be recalled and its application being GA No. 2707 of 2009, inter alia, for revocation of leave under Clause 12 of the Letters Patent or alternatively for return of the plaint for being filed before the appropriate forum, be disposed of expeditiously.
(2.) Learned Counsel for the petitioner submitted that no notice was served on the petitioner before the plaintiff mentioned the suit before this Court for withdrawal with liberty to file afresh. He submitted that without hearing the petitioner, the plaintiff's prayer should not have been allowed. He referred to pages 25 -27 of the plaintiff's affidavit - in -opposition and submitted that the same was only a purported proof of dispatch of notice and was not evidence of receipt of the notice by the petitioner.
(3.) Learned Counsel then submitted that under Order XXIII R. 1 (3) of the Code of Civil Procedure, before granting the plaintiff permission to withdraw the suit with liberty to institute a fresh suit in respect of the self -same subject matter, the Court must record its satisfaction that the suit must fail by reason of same formal defect or that there are sufficient grounds for granting such permission. The said provision is extracted hereunder: - "R. 1(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." ;