ORDER
Mohd. Shamim, J.
1. This is an application by the plaintiffs for permission to withdraw the present suit with liberty to institute a fresh suit on the same cause of action.
2. Brief facts which gave rise to the present application are as under: that the plaintiffs have filed a suit for partition of the property fully shown in the schedule given at the foot of the plaint i.e., 4, Bhagwan Dass Road, New Delhi. On July 19, 1997 after the institution of the suit the plaintiffs came to know in March, 1998 with regard to the existence of an award dated April 1, 1955. The said award is illegal and invalid inasmuch as Shri Subchinthan Singh Malik, father of plaintiff No. 1 and husband of plaintiff No. 2, was made to sign an arbitration agreement dated March 27, 1955 to refer the matter to the arbitration of Shri Hardit Singh Malik on by fraud and misrepresentation. Shri Subchinthan Singh Malik was a man of unsound mind. The said fact is fully manifest from the fact that a trustee was appointed to manager his properties bequeathed to him through a Will. The plaintiffs have come to know of these facts during the pendency of the present suit.
3. Shri Subchinthan Singh Malik was to have only 30% share in the property in suit and that too for his lifetime as per the said award. Furthermore as per the award the share of Subchinthan Singh Malik i.e., 30% in the suit property which was a life interest which fell to his share was to be managed by trustees named in the Will of Sir Teja Singh Malik. It was further ordered therein that in case Shri Subchinthan Singh Malik married again, then his share will devolve upon his sons and daughters by his second wife. In the above circumstances it has become necessary to challenge the said award. In case the said award is not challenged the suit is likely to fail. It has thus been prayed that the plaintiffs be permitted to withdraw the present suit with liberty to file a fresh suit on the same cause of action.
4. The application has been vehemently opposed by the defendants, inter alia, on the following grounds: that a decree in terms of the award was passed and the said award was made a rule of the Court vide judgment and decree dated June 1, 1955. Hence it is now too late in the day to challenge the said award. Shri Subchinthan Singh Malik was admittedly aware of the award as he consented to the reference of the disputes to arbitration. The plaintiffs herein are claiming through said Shri Subchinthan Singh Malik. Hence the plaintiffs are estopped from challenging the same. The plaintiffs have got no right or title to the property in suit in view of the judgment and decree passed on the basis of the said award on June 1, 1955 and the suit is to be dismissed. In case the permission is granted to the plaintiffs to withdraw the present suit with liberty to file it afresh it would be tantamount to putting premium on the mistakes of the plaintiff and to award them for the same. The suit is also barred under the provisions of Order II, Rule 2 of the Code of Civil Procedure. Challenge to the impugned award is hopelessly barred by time. It is wrong and false that the plaintiffs were not aware of the said award. In fact a copy of the award was filed in Suit No. 514/97 filed by defendant No. 1 against defendant No. 2. The plaintiffs have filed a copy of the plaint of the said suit in the present case. Hence it cannot be said that the plaintiffs were not aware of the said award. The application is false and frivolous and is liable to be dismissed.
5. I have heard the learned Counsel for both the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thoughts thereto.
6. Since we are concerned with the construction of the provisions of Order XXIII, Rule 1 (3) of the Code of Civil Procedure it would be just and proper to examine the provisions of the said Order before proceedings any further in the matter. The provisions of the said Order can be adverted to with profit. It is in the following words:
“XXIII. Withdrawal of suit or abandonment of part of claim.
1. (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim;
Provided……
(2) ….
(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 plaintiffs to institute a fresh suit for the subjectmatter 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 subjectmatter of such suit or such part of the claim.”
7. It is manifest from above that the Court can permit a plaintiff to withdraw the suit with liberty to file it afresh on the same cause of action in case the suit is to fail on account of some formal defect. The Court is also competent to grant permission to withdraw the suit with liberty to institute the same on the same cause of action in case the Court is of the view that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action. This is not the case of the plaintiffs that the present suit is likely to fail on account of some formal defect. Mr. D.D. Thakur, Senior Advocate, has contended that the case of the plaintiffs is squarely covered by the provisions of Order XXIII, Rule 1 (3)(b) of the Code of Civil Procedure. The learned Counsel contends that the plaintiffs were not aware of the impugned award i.e., June 1, 1955 till February, 1998. They came to know about it only in March, 1998 through the Land and Development Office whereby a copy of the award was sent to them. There is absolutely nothing on record even to remotely suggest that they were aware of the said award prior to the said date.
8. A close scrutiny of the relevant provisions of law alluded to above reveals that a wide discretion has been placed in the hands of the Court to grant permission to withdraw a suit in case it comes to the conclusion that there is sufficient ground to grant permission to withdrawn the same with liberty to institute it afresh on the same cause of action. It has nowhere been defined as to what are the sufficient grounds for the grant of permission to withdraw a suit with liberty to institute it afresh. This has been left to the discretion of the Court. While observing so this Court is not oblivious of the fact that the said discretion has to be exercised judiciously like any other discretion. It cannot be exercised simply on the whim and fancy of the Court. A duty has been cast on the shoulders of the Court in view of the above, to assess and examine the alleged grounds for the withdrawal of the suit with permission to file it afresh properly and cautiously and in case it comes to the conclusion that there exist sufficient grounds to grant the permission the Court would exercise its discretion judiciously in favour of the plaintiff.
9. Learned counsel for the defendants, Mr. Rajiv Sawhney, Senior Advocate, on the other hand, has contended that the plaintiff were fully aware of the factum of the passing of the said award inasmuch as a copy of the said award was filed in Suit No. 514/97 filed by defendant No. 1 against defendant No. 2. The plaintiffs themselves have filed a copy of the plaint in the said suit. Hence it can be safely concluded therefrom that they were aware of the said award.
10. I am sorry I am unable to agree with the contention of the learned Counsel for the defendants. I have gone through the copy of the plaint in the said suit. There is no mention anywhere throughout the plaint in regard to the said award. Thus the mere fact that the plaintiffs have filed a copy of the plaint of Suit No. 514/97 in the present suit is not sufficient enough to draw an inference that the plaintiffs were aware of the said award.
11. Learned Counsel for the defendants has then contended that admittedly the plaintiffs are claiming through Shri Subchinthan Singh Malik who was a consenting party to the reference of dispute to arbitration and as such, was fully aware of the said award. Hence they are estopped from challenging the same. The contention of the learned Counsel is devoid of any force.
12. Admittedly the plaintiffs want to challenge the said award on the ground that it was obtained practicing fraud and misrepresentation on Shri Subchinthan Singh Malik who was a man of unsound mind. Further, their case is that they were not aware of the said award. Hence the argument that the plaintiffs are bound by the said award is not available to the Counsel for the defendants.
13. It has next been urged by the learned Counsel for the defendants that in case the present application is allowed it would be tantamount to giving a long rope in the hands of the plaintiffs to harass the defendants inasmuch as the proceedings would be prolonged. The contention of the learned Counsel may be an ingenious one but is of no substance. Admittedly the present suit was filed on July 19, 1997. The issue have not been framed as yet. Thus the suit is at its initial stage. Hence the present application has been made at the earliest opportunity as the plaintiffs came to know with regard to the award only in March, 1998. The application for withdrawal of the present suit was moved on August 26, 1998. Thus it cannot be said that in case the present application is allowed it will prolong the proceedings and would harass the defendants.
14. There is another aspect of the matter. Admittedly the plaintiffs want to withdraw the present suit since it is likely to fail for the reason that they are not challenging the award dated April 1, 1955 which has been made a rule of the Court vide judgment and decree dated June 1, 1955. In case the permission is not granted the suit would fail and some would be a punishment out of all proportions to the plaintiffs for a lapse, if any, on the part of their Counsel. On the other hand, in case the permission is granted it would be simply a permission to institute a fresh suit on the same cause of action. In that eventuality the defendants would be free to raise all sorts of defenses which have been raised while opposing the present application before this Court. Thus granting of the permission to the plaintiffs to institute a fresh suit on the same cause of action is not going to affect the defendants in any way.
15. The case of the plaintiffs is that Shri Subchinthan Singh Malik was a man of weak intellect. Hence his consent to refer the dispute to arbitration was obtained fraudulently by practicing fraud and misrepresentation. The fact that he was a man of weak intellect has been admitted by defendant No. 3 in so man words vide para 1 (F) of the written statement filed by her. I am tempted here to reproduce the words of that para. “S. Subachintan Singh Malik was mentally week, his father, S. Teja Singh Malik, had appointed a Board of Trustees to manage and administer his assets. One of the trustee was the replying defendant’s husband, S. Khushwant Singh.”
16. Even defendant No. 1 has also admitted this fact in his written statement in paras 3 & 4 (d). Thus this fact is no more in dispute that Shri Subchinthan Singh Malik was a man of weak intellect and a Board of Trustees was appointed to manage his estate and to look after his interests.
17. In the circumstances, stated above I think it expedient in the interest of justice to allow the present application. The application is allowed. The present suit is hereby dismissed as withdrawn with liberty to the plaintiff to file a fresh suit on the same cause of action. The plaintiffs are however, directed to pay Rs.15,000/ by way of costs to the defendants.