SANGEET LODHA - (1.) THIS intra court appeal is directed against order dated 2.4.12 of the learned Single Judge of this court, whereby a writ petition preferred by the appellants questioning the legality of order dated 26.10.98 of the Board of Revenue dismissing the revision petition preferred by the appellants against the order dated 12.2.96 of the Assistant Collector, Bhadra permitting the respondent no.3 herein to withdraw the suit with liberty to file fresh in terms of provisions of Order XXIII Rule 1(3) CPC, stands dismissed.
(2.) THE respondent no.3 preferred a suit for declaration and permanent injunction against the appellants herein. THE suit was being contested by the appellants by filing a written statement thereto. During the pendency of the suit, the appellants preferred an application under Order XXIII Rule 3 (a) & (b) (sic Rule 1(3)) read with Section 151 CPC seeking permission to withdraw the suit with liberty to institute a fresh suit. THE application was contested by the appellants herein by filing a reply thereto. After due consideration, the application was allowed by the Assistant Collector vide order dated 26.10.98. THE validity of the said order was assailed by the appellants herein by way of a revision petition before the Board of Revenue, which was also dismissed vide order dated 17.10.11. Aggrieved thereby, the writ petition preferred stands dismissed by the learned Single Judge by the order impugned. Hence, this appeal. Learned counsel for the appellants contended that in terms of Order XXIII Rule 1(3) CPC, the permission to withdraw the suit with liberty to file fresh can be granted by the court only where the suit suffers from the formal defects and therefore, the suit which was pending and being contested by the appellants for more than 8 years could not have been permitted to be withdrawn with liberty to institute fresh suit in respect of the subject matter of the suit and therefore, the order passed by the Revenue Court was ex facie erroneous. Learned counsel submitted that on the facts and in the circumstances of the present case, the learned Single Judge has committed an error in refusing to interfere with the order passed by the Board of Revenue declining to interfere with the order passed by the Assistant Collector. Indisputably, Order XXIII Rule 1(3) empowers the court to permit withdrawal of the suit or such part of the claim with liberty to institute a fresh suit in respect of subject matter of such suit or such part of claim if it is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of the claim. Thus, the contention of the learned counsel for the appellants that in terms of Order XXIII Rule 1(3) , the court can permit withdrawal of the suit with liberty to file fresh suit only in case where a suit must fail by reason of some formal defect is absolutely incorrect. But then, while permitting the withdrawal of the suit with liberty to file fresh in terms of Rule 1(3)(b) , the plaintiff has to make out sufficient ground for the permission sought for and such application cannot be granted by the court as a matter of course. In the instant case, it is to be noticed that while considering the application for withdrawal as prayed for, the court has observed that the plaintiffs have filed the suit for declaration and permanent injunction, however, they are not permitted to cultivate the land and the defendants have taken the stand that the plaintiffs have never been in possession of the land and therefore, in the suit as framed , the relief claimed for cannot be granted to the plaintiffs. It is pertinent to note that the plaintiffs have preferred the application for withdrawal of the suit with liberty to file fresh so as to include the relief of partition of the holdings in the suit to be filed. In considered opinion of this court, if the plaintiffs wants to consolidate their all claims in one suit then, the same has to be treated to be sufficient ground for permitting of withdrawal of the suit with liberty to file fresh in terms of the provisions of Order XXIII Rule 1(3) (b). Obviously, the words "other sufficient grounds" envisaged under Rule 1(3) (b) has to be read independent of Rule 1(3)(a) of the Rules which permits the withdrawal of the suit with liberty to file fresh in case of "formal defect". In terms of the Rule 1(3)(b) , the court is vested with the wider discretion to allow withdrawal of the suit or part of the claim with liberty to institute fresh suit. Thus, on the facts and in the circumstances of the case noticed above, the discretion exercised by the Revenue Court in permitting the withdrawal does not suffer from any jurisdictional error. In this view of the matter, the learned Single Judge has rightly declined to interfere with the order of the Board of Revenue rejecting the revision petition preferred by the appellants questioning the legality of the order passed by the Assistant Collector granting the application preferred by the respondent no.3-plaintiff for withdrawal of the suit with liberty to institute fresh. In the result, the intra court appeal fails, it is hereby dismissed. ;