VINOD K.SHARMA, J. - (1.) THIS revision petition has been filed against the order passed by the learned Civil Judge (Junior Division), Chandigarh vide which the suit filed by the plaintiff-respondents has been ordered to be dismissed as withdrawn with permission to file a fresh suit on the same cause of action. The order passed by the learned court below reads as under :- "At this stage, plaintiff has made a separate statement in the court to the effect that he withdraw his suit with permission to file afresh suit on the same cause of action as there are technical defects in the suit, so he may permitted to file afresh suit on the same cause of action. Plaintiff has also filed a separate civil misc. praying therein that documents in original stated in the list attached may be returned to him. Suit is ordered to be dismissed as withdrawn with permission to the plaintiff to file afresh suit on the same cause of action and documents produced by the plaintiff are ordered to be returned as per rules on filing certified copies thereof by the plaintiff for record. File be consigned to the record room."
(2.) LEARNED counsel for the petitioner contends that the impugned order cannot be sustained in view of the authoritative pronouncement by the Hon'ble Supreme Court in the case of K.S. Bhoopathy and others v. Kokila and others, 2000(3) RCR(Civil) 195 : JT 2000(6) SC 272 wherein Hon'ble Supreme Court has been pleased to lay down as under :- "13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore, on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule. In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided : (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean state (slate ?) . It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. 14. In Bakhtawar Singh and another v. Sada Kaur and another, 1997(1) RCR(Civil) 51 : JT 1996(8) SC 407 : 1996(11) SCC 167 the question of grant of permission under clause (3) of Order XXIII Rule 1 of the CPC was considered wherein it was held : "In the present case all the courts below including the High Court concurrently found that the plaintiffs/appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there was sufficient ground for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter. The plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs/appellants in accordance with the provisions of clause (2) of Order XXIII Rule 1 of the Code." 15. Recently in the case of Executive Officer Arthaneswarar Temple v. R. Sathyamoorthy and others, 1999(2) RCR(Civil) 193 : JT 1999(1) SC 343 : 1999(3) SCC 115 this Court restated the general principles of dealing with the applications under Order XXIII Rule 1 CPC in the following words : "Various High Courts have rightly held, while dealing with applications under Order XXIII Rule 1 CPC that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial Court dismissing the suit and if the appellant-plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial Court in favour of the defendants would get nullified, such permission for withdrawal of the suit should not be granted." Similar view was taken by this Court in the cases of Jubedan Begum and others v. Sekhawat Ali Khan, AIR 1984 P&H 221; Ram Kumar v. Kartar Singh, 1987 RRR 372 : 1987 PLJ 170 and Sulakhan Singh v. Daljit Singh and others, 1988(2) RRR 410 : 1988 PLJ 396. The reading of the impugned order shows that the learned trial Court has not given any reason as to why the suit was liable to fail or as to what material defect was there in the suit. Therefore, in view of the settled law referred to above, the impugned order cannot be sustained. Accordingly, this revision petition is allowed. The impugned order is set aside and the case is remanded back to the learned Civil Judge (Junior Division), Chandigarh for disposal of the same on merit. The parties through their counsel are directed to appear before the learned trial Court on 17.7.2007. Petition allowed.;