TMI Blog1998 (2) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... esh suit which was filed and numbered as O.S.727/94. 3. The petitioner filed O.S.713/93 against the respondent without issuing statutory notice under Section 685 of the H.M.C. Act. Admittedly, want of statutory notice is fatal to the maintainability of the suit. He, therefore, wants to withdraw the suit. In the instant case, the petitioner even before the application was allowed, instituted a fresh suit on the same cause of action in O.S.727/94. Now, the only question that arises for consideration is whether the filing of the second suit on the same cause of action precludes the Court to grant permission under Order 23 Rule 1(3) C.P.C., to withdraw the first suit. The Court below held that Order 23 Rule 1(3) CPC cannot be applied to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Counsel for the petitioner relied on a decision in B. Rizwang Baig v. Municipal Corporation of Hyderabad, 1989 (1) APLJ 480 wherein it was held by the learned single Judge of this Court, following the decision of the Kerala High Court in Ammini Kutty v. George Abraham, that merely because a fresh suit has already been instituted, that should not be a ground for not according permission to withdraw the earlier suit and that if the suit was allowed to be withdrawn, it should be recorded as having never been brought. It is the view of the learned Judge of Kerala High Court in the above case (supra) that - ... it is not really material whether the permission is granted before or after the institution of a fresh suit. Even if the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) that filing of fresh suit without obtaining permission was improper and at best only be an irregularity, it should be considered as cured all east from the time permission is obtained. This approach, to my mind, is salutary and serves the interests of justice. The procedural rigour cannot be allowed to come in the way of substantive justice. Filing of the second suit without actually obtaining permission to withdraw the first suit should only be treated as a procedural irregularity, which is curable. The permission to withdraw the first suit is only to file a fresh suit and when such permission is granted, the suit already instituted should not fail. The permission takes away the bar of res judicata. Hence the second suit should be held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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