1 CRA 493/10 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 493 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders The petitioner in person. Mr. R.N. Gite for the respondent. CORAM : D.G. KARNIK, J. DATE : 8TH DECEMBER 2010 P.C. : 1. Heard. 2. By this application, the applicant challenges the order passed below Exhibit-92 whereby the respondent was permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. 3. Order 23 Rule 1(3) of the Code of Code of Civil Procedure (for short “the CPC”) reads as under: 2 CRA 493/10 “(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, 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 subject matter of such suit or such part of the claim.” (underlining supplied) Thus, where the Court is satisfied that the suit would fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the subject matter of the suit, it can grant permission to the plaintiff to withdraw the suit or part of the claim with liberty to institute a fresh suit in respect of the same subject matter. It does not empower a Court to allow the 3 CRA 493/10 plaintiff to withdraw a suit with liberty to file a fresh suit on the same cause of action. There is a distinction between “the subject matter of a suit” and “the cause of action for filing of a suit”. Suit can be allowed to be withdrawn with liberty to file a fresh suit in respect of the same subject matter but there is no power conferred under Order 23 Rule 1 of the CPC to allow the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action. The trial Court, therefore, erred in granting permission to the respondent for filing fresh suit on the same cause of action. 4. For these reasons, the revision application is allowed and the impugned order by which the Court has granted permission to the respondent no.1 to file a fresh suit in respect of the same cause of action is set aside. The suit is accordingly restored to file. (D.G. KARNIK, J.)