CRP 129/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY Heard Mr. PK Kalita, Senior Advocate for the petitioner. Inspite of service of n otice on the opposite party, none has entered appearance on his behalf. The factual backdrop, in short, is that the present petitioner as plaintiff inst ituted TS No. 188/2008 against the opposite party/defendant and others praying f or a decree for a declaration that the suit path was included within the periodi c patta land belonging to her and other proforma defendants. A decree for declar ation of her right, title and interest in the suit path and for a direction to t he opposite party/defendant to remove the iron gate fixed thereon, was also soug ht for. In the written statement filed by the opposite party/defendant, it was, inter al ia, pleaded that one Dwijendra Narayan Mazumdar (since deceased) was the owner-i n-possession of the suit path and that eventually, the same was sold to his wife Bijuli Chakravorty and brother Kamal Chakravorty and that thereafter they had b een using the same to the exclusion of others. Situated thus, the petitioner filed an application under Order 6 Rule 17 of the Code of Civil Procedure (for short hereafter referred to as the Code) read with Order 1 Rule 10 thereof, seeking an amendment of the plaint by incorporating the necessary facts bearing on the aforementioned disclosures in the written statem ent. By order dated 10.01.2011 this prayer was rejected by the learned trial Cou rt principally on the following grounds: - i) the trial of the suit had commenced by then; ii) there was lack of due diligence on the part of the petitioner/plaintiff; iii) the endeavour was to fill up the lacuna in the plaint. Admittedly, this order remained unchallenged by the petitioner. It was, thereaft er, that an application was filed by him under Order XXIII Rule 1 (3) of the Cod e seeking to withdraw the aforementioned suit with a leave to file a fresh one. The above facts were detailed in the application. The learned trial Court having rejected the prayer for withdrawal by the order impugned herein, the petitioner is before this court for redress. Mr. Kalita, has urged that having regard to the framework of the suit as well th e revelations from the written statement of the opposite party/defendant, the su it, in the present form, in absence of the amendment, as sought for, is bound to be dismissed due to formal defects and, therefore, the learned trial Court in p assing the impugned order had failed to exercise the writ jurisdiction vested in it by law. He has further submitted that if the impugned order is allowed to st and, it would lead to multiplicity of litigations. I have duly considered the arguments advanced along with the pleadings on record . The relief sought for in the instant petition noticeably include one for inter ference with the order dated 10.01.2011, rejecting the petitioner/plaintiff’s pr ayer for amendment of the plaint. This Court, however, vide its order dated 11.0 5.2011, while issuing notice of motion, restricted the scrutiny of challenge to the rejection of the prayer for withdrawal of the suit. Be that as it may, on a conjoint consideration of the averments made in the writ ten statement animating the petitioner/plaintiff to seek an amendment of his pla int, the nature of amendment sought for and the averments made in the applicatio n under Order XXIII Rule 1 of the Code, this Court is of the view that interfere nce with the impugned order is called for to prevent multiplicity of litigations . Order XXIII Rule 1 (3) of the Code prescribe that a Court if 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 f resh suit for the subject-matter of a suit or part of a claim, it may, on such t erms 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. The scope and ambit of Clause (b) of Order XXIII Rule 1 (3) is wide enough, i n the opinion of this Court, to encompass the situation that has surfaced i n the facts and circumstances of the case. Though, in terms of the earlier o rder of this Court, the scrutiny in the instant proceeding is limited to the pleas having a bearing on the rejection of the petitioner’s prayer f or withdrawal of the suit, the fact that he has also put to challenge the order of rejection of his prayer for amendment of the plaint cannot, as such, be lost sight off. In other words, though, belatedly the petitioner/plaintiff has pursue d his relief for amendment of the plaint so as to update the averments thereof t o appropriately meet the pleadings of the opposite party/defendant. Be that as it may, having regard to the scope of Order XXII Rule 1 (3) (b) of th e Code, this Court is of the view that the impugned order ought to be set aside. Ordered accordingly. In the facts and circumstances of the case, the petitioner is allowed to withdra w TS No. 188/2008. Liberty is also granted to him to institute a fresh suit, if so advised, however, strictly in accordance with law. No costs.