ORDER
V.K. Mehrotra, Ag. C.J.
1. Plaintiff Hans Raj Akrot filed civil suit No. 497 of 1985 which is pending in the Court of the Sub Judge 1st Class, Amb, in District Una On being advised that the suit suffered from some legal error, he made an application under Order XXIII, Rule 1, C.P.C. for permission to withdraw the suit with liberty to file a fresh suit. The learned Sub Judge disposed of this application by an order dated March 14, 1988. He allowed the application partly to the extent that the plaintiff was permitted to withdraw the suit. The learned Sub Judge, however, refused liberty to the plaintiff to file a fresh suit in respect of the same subject matter. In the operative portion the learned Judge directed that the suit of the plaintiff shall stand dismissed as withdrawn.
It is this order which is under challenge in the present revision under Section 115, C.P.C.
2. Notice of the revision was given to the learned Asstt. Advocate General who represents the State of Himachal Pradesh, the sole defendant-respondent. It has been heard finally today.
3. Order XXIII, Rule 1, C.P.C., in its material part, reads thus : —
“I. Withdrawal of suit or abandonment of part of claim.– (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 that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is in his opinion, for the benefit of the minor or such other person.
(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 suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, that 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 subject matter of such suit or such part of the claim.
(4) and (5) ……”
4. A perusal of this Rule makes it clear that where the court 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 a suit or a part thereof, it
may grant permission to the plaintiff to withdraw the suit with liberty to institute a fresh suit on such terms as it thinks fit.
5. It is settled that where a plaintiff makes a prayer for withdrawal of the suit with liberty to file a fresh suit in respect of the subject matter of the suit, the court can permit the withdrawal of the suit coupled with the liberty to file a fresh suit. It cannot refuse that liberty to the plaintiff on its own. If the Court feels that, in the circumstances, brought before it, permission to withdraw the suit should not be granted, it can refuse the prayer by rejecting the application. It is not open to the court to split up the prayer made by the plaintiff by allowing the withdrawal of the suit and refusing the Liberty to institute a fresh suit in respect of the same subject matter. (See Wazir Singh Chhela Blaka Baba Mulangah Shah v. Hidayat Shah Shrida, AIR 1967 Punjab 405, Devidas Tulsiram Brijwani v. Commr., Poona Municipal Corpn., AIR 1974 Bom 39 and Radha Krishna v. State of Rajasthan, AIR 1977 Rajasthan 131 (DB)).
6. The impugned order of the learned Sub Judge is unsustainable for he has exercised jurisdiction which he did not possess in law. It deserves to be and is set aside.
7. As prayed by the learned counsel for the parties, I direct the learned Judge to proceed with the trial of suit expeditiously.
8. Costs on parties.