TMI Blog2017 (1) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... efect within the meaning of Order XXIII Rule 1(3)(a) Code of Civil Procedure. In the facts and circumstance of the case, the trial court considered the allegation set out in the application as a ground for withdrawal. The view taken by the trial court that the suit suffered from a formal defect to allow the Appellants to withdraw the suit with permission to institute a fresh suit, is correct. The High Court was not right in interfering with the discretion exercised by the trial court, permitting the Appellants to withdraw the suit with liberty to file a fresh suit. The order of the trial court is restored with modification to the effect that the cost imposed on the Appellants is enhanced from ₹ 3,000/- to ₹ 10,000/- - app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of the Respondent's husband, the Sub-Collector, Paramakudi without conducting proper enquiry, cancelled the patta in the name of the Appellants and transferred the patta in the name of the father of the Respondent-Karthyayani Natchiar by order dated 06.08.2003. Alleging that the Respondents are trying to interfere with the possession of the Appellants of the suit property, the Appellants have filed the suit as O.S. No. 89 of 2004 for permanent injunction. In the said suit, the Respondents filed written submission contending that the Power of Attorney was fraudulently obtained by said Thangaraj as he has no right to sell the suit property to the Appellants. 4. According to the Appellants, after the written statement was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either formal defects or sufficient grounds for withdrawal of the suit. Being aggrieved, the Appellants have preferred this appeal by way of special leave. 6. The learned Counsel appearing for the Appellants Mr. Nanda Kumar has submitted that the Appellants filed the suit in O.S. No. 89 of 2004 seeking relief of permanent injunction in respect of the suit property described as Survey No. 192/9, but while transferring the patta, in favour of the Respondents, it was transferred as Survey No. 192/14, which the Appellants were not aware of at the time of filing of the suit. The Appellants have also alleged that only after the suit was filed, they came to know that the Respondent and her husband executed a registered Inam Settlement Deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts moved abruptly an application seeking withdrawal of the suit on an inapposite ground which could have been easily addressed by way of an application under Order VI Rule 17 Code of Civil Procedure for amendment of pleadings and that the Appellants failed to establish either a formal defect or sufficient grounds for withdrawal of the suit. 9. Order XXIII Rule 1(3) Code of Civil Procedure lays down following grounds on which a Court may allow withdrawal of suit. It reads as under: Rule 1. Withdrawal of suit or abandonment of part of claim- (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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the Plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the formal defect or sufficient grounds , such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the Plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the Plaintiff to claim or to do so to the detriment of legitimate right of the Defendant. When an application is filed under Order XXIII Rule 1(3) Code of Civil Procedure, the Court must be satisfied about the formal defect or sufficient grounds . Formal defect is a defect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds . 12. In the present case, the Appellants have filed the suit describing the suit property as Survey No. 192/9 but the Respondents are said to have transferred the patta for the suit property settling as Survey No. 192/14. The defect in the survey number of the suit property goes to the very core of the subject matter of the suit and the entire proceedings would be fruitless if the decree holder is not able to get the decree executed successfully and thus, the said defect will constitute to be a formal defect within the meaning of Order XXIII Rule 1(3)(a) Code of Civil Procedure. That apart the Respondents are said to have executed an Inam Settlement Deed on 21.09.2012, in favour of their son Aranmanai Pandian, mentioning the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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