V. RAJENDRAN AND ANR. versus ANNASAMY PANDLAN (D) THR. LRS. KARTHYAYANL NATCHIAR
[2017] 2 S.C.R. 508, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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(2017] 2 S.C.R. 508 
V. RAJENDRAN AND ANR. 
v. 
ANNASAMY PANDlAN (D) THR. LRS. KARTHYAYANl 
NATCHIAR 
(Civil Appeal No. 861 of2017) 
JANUARY 24, 2017 
[DIPAK MISRA AND R. BANUMATHI, JJ.] 
Code of Civil Procedure, 1908 - 0. XXJII, r. I (3){a) -
Withdrawal of suit - On ground of 'formal defect" in suit -
Appellants filed suit for permanent injunction describing suit 
property with a defective survey number - Thereafter, during trial, 
appellant filed application u/O. XXIII, r. J (3) for withdrmval of the 
suit - Propriety of - Held: Defect in the survey number of the suit 
property goes to the very core of the subject matter of the suit and 
entire proceedings would be fruitless if the decree holder is not 
able to get the decree executed successfi1lly and thus, the said defect 
will constitute to be a formal defect' within the meaning of 0.XXJJJ, 
r. I (3), CFC - Hence, case of appellant would fall u!O.XXIII, r. J (3)(a). 
Costs - Enhancement of - Appellants filed suit for permanent 
injunction in 2004 - After ten years, an application was filed by 
appellants u!O.XXIII, r. I (3), CFC seeking withdrawal of the suit -
Held: Application was filed after substantial progress was made in 
the suit - In such circumstances, in instant case, while permitting 
appellant to withdraw the suit, costs of Rs.3000/- awarded by the 
trial court enhanced to Rs.10, 000/-. 
Allowing the appeal, the Court 
HELD: 1. Order XXIII Rule 1(3) CPC lays down grounds 
on which a Court
may allow withdrawal of suit. As per Order XXIII 
Rule 1(3) CPC, suit may only be withdrawn with permission to 
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bring a fresh suit when the Court is satisfied that the suit must 
fail for reason of some formal defect or that there are other 
sufficient grounds for allowing the plaintiff to institute a fresh 
suit. The power to allow withdrawal of a suit is discretionary. In 
the application, the plaintiff must make out a case in terms of 
Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. 
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508
V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D) 
THR. LRS. KARTHYAYANI NATCHIAR 
The Court can allow the application filed under Order XXIII Rule 
1 (3) CPC for withdrawal of the suit with liberty to bring a fresh 
suit only if the condition in either of the clauses (a) or (b) that is, 
existence of a "formal defect" or "sufficient grounds". The 
principle under Order XXIII Rule 1 (3) CPC is founded on public 
policy to prevent institution of suit again and again on the same 
cause of action. [Para 9] [513-D-H; 514-A] 
2. When au application is filed under Order XXIll Rule 
1(3) CPC, the Court must be satisfied about the "formal defect" 
or "sufficient grounds''. "Formal defect" is a defect of form 
prescribed by the Rules of procedure such as, want of notice 
under Section 80 CPC, improper valuation of the suit, insufficient 
court fee, confusion regarding identification of the suit property, 
mis-joinder of parties, failure to disclose a cause of action etc. 
"Formal defect" must be given a liberal meaning which connotes 
various kinds of defects not affecting the merits of the plea raised 
by either of the parties. [Para 10] [514-C-E] 
3. In terms of Order XXIII Rule 1(3) (b) CPC where the 
court is satisfied that there are sufficient grounds for allowing 
the plaintiff to institute a fresh suit, the Court may permit the 
plaintiff to withdraw the suit. In interpretation of the word 
"sufficient grounds", there are two views: One view is that these 
grounds in clause (b)
must be "ejusdem generis" with those in 
clause (a), that is, it must be of the same nature as the ground in 
clause (a) that is formal defect or at least analogous to them; and 
the other view was that the words "other sufficient grounds" in 
clause(b) should be read independent of the words a 'formal 
defect' and clause (a). Court bas been given a wider discretion to 
allow withdrawal from suit in the interest of justice in cases where 
such a prayer is not covered by clause (a). (Para 11] (514-F-G) 
4. In the present case, the appellants have filed the suit 
describing the suit property as Survey No.192/9 but the 
respondents are said to have transferred the patta for the suit 
property settling as Survey No.192/14. The defect in the survey 
number of the suit property goes to the very core of the subject 
matter of the suit aud the entire proceedings would be fruitless if 
the decree holder is .not able to get the decree executed 
successfully and thus, the said defect will constitute to be a 
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510 
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SUPREME COURT REPORTS 
[2017] 2 S.C.R. 
"formal defect" within the meaning of Order XXIII Rule 1(3)(a) 
CPC. That apart the respondents are said to have executed an 
Inam Settlement Deed, in favour of their son, mentioning the 
suit property as Survey No.192/14. The case of the appellants 
would fall under clause (a) of Rule 1(3)CPC. [Para 12] [515-A-C) 
5. In the facts and circumstance of the case, the trial court 
considered the allegation set out in the application as a ground 
for withdrawal. The view taken by the trial court that the suit 
suffered from a formal defect to allow the appellants to withdraw 
the suit with permission to institute a fresh suit, is correct. The 
High Court was not right in interfering with the discretion 
exercised by the trial court, permitting the appellants to withdraw 
the suit with liberty to file a fresh suit. Based on the order passed 
by the trial court, the appellants have already filed suit before 
District Munsif. The High Court while passing the order does 
not seem to have kept in view the said suit filed by the appellants. 
In the facts and circumstance of the case, the impugned order 
passed by the High Court cannot be sustained. [Para 13] [515-
D-E) 
6. The appellants have filed the suit way back in 2004 after 
the witnesses on either side were examined and the application 
was filed under Order XXIII Rule 1 (3) CPC seeking withdrawal 
of the suit in the year 2014, after substantial progress was made
in the suit. In such circumstances, costs of Rs.3000/- awarded by 
the District Munsif is to be enhanced. [Para 14] [515-FJ 
K.S. Bhoopathy and Ors. v. Kokila and Ors. (2000) 5 
SCC 458: [2000] 3 SCR 1168 - referred to. 
Case Law Reference 
(2000] 3 SCR 1168 
referred to 
Para 10 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 86 I of 
2017. 
From the Judgment and Order dated 09.03.2015 of the High Court 
of Madurai Bench of Madras High Court in C.R.P. PD (MD) No. 248 
of2015. 
S. Nanda Kumar, Parivesh Singh, P. Srinivasan, Ram Ohan Singh 
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Narwal, Naresh Kumar, Ad vs. for the Appellants.
V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D) 
511 
THR. LRS. KARTHYAYANI NATCHIAR 
The Judgment of the Court was delivered by 
A 
R.. BANUMATIII, J. I. Leave granted. 
2. This appeal arises out of the impugned order dated 09.03.2015 
passed by the High Court of Madras at Madurai Bench allowing C.R.P. 
NPD (MD) No. 248of2015, thereby declining the leave to the appellants 
to withdraw the suit. 
3. Case of appellants-plaintiffs is that originally the suit property 
was the ancestral property of Annasamy Pand ian, who is the father of 
the respondent-Karthyayani Natchiar herein and the pal/a forthe entire 
suit property was issued in the name of Annasamy Pandian and his 
relatives (Pangaligal). The said Annasamy Pandian appointed one 
Thangaraj as his power agent to deal with his property by a registered 
Power of Attorney Deed dated 09.09.1999. Based upon the said Power 
of Attorney, the appellants purchased the said suit property from 
Thangaraj under four sale deeds i.e. 50 cents each. The appellants being 
husband and wife, fenced the suit property purchased by them and 
possessed and enjoyed the same as a single property. The Tahsildar of 
Kadaladi has passed an order dated 31.03.2003, confirming the appellants' 
purchase and possession over the suit property. Further case of the 
appellants is that on the application of the respondent's husband, the 
Sub-Collector, Paramakudi without conducting proper enquiry, cancelled 
the patta in the name of the appellants and
transferred the pal/a in the 
name of the father of the respondent-Karthyayani Natchiar by order 
dated 06.08.2003. Alleging that the respondents are trying to interfere 
with the possession of the appellants of the suit property, the appellants 
have filed the suit as O.S. No.89 of2004 for permanent injunction. In 
the said suit, the respondents filed written submission contending that 
the Power of Attorney was fraudulently obtained by said Thangaraj as 
he has no right to sell the suit property to the appellants. 
4. According to the appellants, after the written statement was 
filed and during the trial, they learnt that the respondents while transferring 
the paua in respect of the suit property (Survey No.192/9), they have 
transferred it as Survey No.192114, which the appellants were not aware 
of at the time of filing the suit. During the pendency of the suit, the 
respondent- Karthyayani Natchiar alongwith her husband-Velladurai is 
said to have clandestinely executed and registered an Inam Settlement 
Deed on 21.092012 in favourof their son Aranmanai Pandian, mentioning 
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SUPREME COURT REPORTS 
[2017] 2 S.C.R. 
the Survey No.192/\ 4: and they are also said to have handed over the 
possession of the suit property to him. Parties have also litigated before 
the Revenue Court regarding transfer of patta. 
5. The trial in the suit commenced; witnesses were examined on 
both the sides. After the suit was posted for judgment, on application 
filed by the appellants for raising additional issues and for examining 
additional witnesses, the suit stood adjourned. Atthat stage, the appellants 
filed the application for withdrawal of the suit in terms of Order XXlll 
Rule 1 (3) CPC. The District Munsif allowed the application filed by the 
appellants seeking withdrawal of the suit with liberty to file a fresh suit 
and directed the appellants to pay cost ofRs.3,000/- to the respondents. 
Being aggrieved, the respondents filed revision before the High Court, 
which was allowed and order of the trial court was set aside. The High 
Court held that the appellants have failed to establish either "formal 
defects" or "sufficient grounds" for withdrawal of the suit. Being 
aggrieved, the appellants have preferred this appeal by way of special 
leave. 
6. The learned counsel appearing for the appellants Mr. Nanda 
Kumar has submitted that the appellants filed the suit in 0.S.No.89 of 
2004 seeking relief of permanent injunction in respect of the suit property 
described as Survey No.192/9, but while transferring the patta, in favour
of the respondents, it was transferred as Survey No.192/\ 4, which the 
appellants were not aware ofat the time of filing of the suit. The appellants 
have also alleged that only after the suit was filed, they came to know 
that the respondent and her husband executed a registered lnam 
Settlement Deed on 21.09.2012 in favour ofrespondent's sonAranmanai 
Pandian mentioning the suit property as Survey No.192114. Learned 
counsel submitted that because of change in the survey number of the 
suit property and also the alleged settlement deed in favour of Aranmanai 
Pandian, a confusion will prevail with regard to the identification of the 
suit property and hence the appellants had to file an application under 
Order XXllI Rule 1 (3) CPC and the trial court was right in allowing the 
application filed by the appellants to withdraw the suit with liberty to file 
a fresh suit. It was submitted that without proper appreciation of the 
points raised by the appellants, the High Court erred in setting aside the 
order passed by the trial court. 
7. The respondents were served but none appeared for the
V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D) 
THR. LRS. KARTHYAYANI NATCHIAR [R. BANUMATHI. J.] 
respondents. We have heard learned counsel for the appellants and 
perused the impugned order and the materials on record. 
8. The High Court vide impugned order held that the defect 
mentioned by the appellants in the application seeking withdrawal of 
suit, is not a "formal defect" and that the provision of withdrawal of the 
suit contemplated under Order XXlll Rule 1 (3) CPC cannot be allowed 
to be misused by the parties. The High Court took note of the fact that 
the appellants participated in the trial ofthe suit for about a decade and 
when the suit was listed for framing additional issues and for examining 
the additional witnesses, the appellants moved abruptly an application 
seeking withdrawal of the suit on an inapposite ground which could have 
been easily addressed by way ofan application under Order VI Rule 17 
CPC for amendment of pleadings and thatthe appellants failed to establish 
either a "formal defect" or "sufficient grounds" for withdrawal of the 
suit. 
9. Order XXIII Rule 1(3) CPC lays down following grounds on 
which a Court may allow withdrawal of suit. It reads as under: 
R.1. Withdrawal of suit or abandonment of part of claim.-
(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 
permissio)1 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. 
As per Order XXIII Rule 1 (3) CPC, suit may only be withdrawn 
with permission to bring a fresh suit when the Court is satisfied that the 
suit must fail for reason of some formal defect or that there are other 
sufficient grounds for allowing the plaintiff to institute a fresh suit. The 
powerto allow withdrawal of a suit is discretionary. In the application, 
the plaintiff must make out a case in terms of Order XXlll Rule 1 (3) (a) 
or (b) CPC and must ask for leave. The Court can allow the application 
filed under Order XXIll Rule 1 (3) CPC for withdrawal of the suit with 
liberty to bring a fresh suit only ifthe condition in either of the clauses 
(a) or (b) that is, existence of a "formal defect" or "sufficient grounds". 
513 
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SUPREME COURT REPORTS 
[2017] 2 S.C.R. 
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The principle under Order XXIII Rule 1 (3) CPC is founded on public 
policy to prevent institution of suit again and again on the same cause of 
action. 
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10. In K.S. B/10op11tliv am/ Ors. vs. Koki/11 and Ors. (2000) 5 
SCC 458, it has been held that it is the duty of the Court to be satisfied 
about the existence of "formal defect" or "sufficient grounds" before 
granting permission to withdraw the suit with liberty to file a fresh suit 
under the same cause ofaction. ·Though, liberty may lie with the plaintiff 
in a suitto withdraw the suit at any time after the institution of suit on 
establishing the "fonnal defect" or "sufficient grounds", such right cannot 
be considered to be so absolute as to pennit or encourage abuse of 
process of Court. The fact that the plaintiff is entitled to abandon or 
withdraw the suit or part of the claim by itself, is no licence to the plaintiff 
to claim or to do so to the detriment of legitimate right of the defendant. 
When an application is filed under Order XXlll Rule I (3) CPC, the 
Court must be satisfied about the "fonnal defect" or "sufficient grounds". 
"Formal defect" is a defect of form prescribed by the Rules of procedure 
such as, want of notice under Section 80 CPC, improper valuation of the 
suit, insufficient court fee, confusion regarding identification of the suit 
property, mis-joinder of parties, failure to disclose a cause of action etc. 
"Formal
defect" must be given a liberal meaning which connotes various 
kinds of defects not affecting the merits of the plea raised by either of 
the parties. 
11. In tenns of Order XXIII Rule I (3) (b) where the court is 
satisfied that there are sufficient grounds for allowing the plaintiff to 
institute a fresh suit, the Court may pennit the plaintiff to withdraw the 
suit. In interpretation of the word "sufficient grounds", there are two 
views: 6 One view is that these grounds in clause (b) must be "ejusdem 
generis" with those in clause (a), that is, it must be of the same nature 
as the ground in clause (a) that is formal defect or at least analogous to 
them; and the other view was that the words "other sufficient grounds" 
in clause(b) should be read independent of the words a 'fonnal defect' 
and clause (a). Court has been given a wider discretion to allow 
withdrawal from suit in the interest of justice in cases where such a 
prayer is not covered by clause (a). Since in the present case, we are 
. only concerned with "fonnal defect" envisaged under clause (a) of Rule 
(I) sub-rule (3), we choose not to elaborate any further on the ground 
contemplated under clause (b) that is "sufficient grounds".
V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D) 
THR. LRS. KARTHYAYANI NATCHIAR [R. BANUMATHI, J.] 
12. In the present case, the appellants have filed the suit describing 
the suit property as Survey No.192/9 but the respondents are said to 
have transferred the patta for the suit property settling as Survey No.192/ 
14. The defect in the survey number of the suit property goes to the 
very core of the subject matter of the suit and the entire proceedings 
would be fruitless if the decree holder is not able to get the decree 
executed successfully and thus, the said defect wilt constitute to be a 
"format defect" within the meaning of Order XXIII Rule 1(3)(a) CPC. 
That apart the respondents are said to have executed an Inam Settlement 
Deed on 21.09.2012, in favour of their son Aranmanai Pandian, 
mentioning the suit property as Survey No.192/14. We are convinced 
that the case of the appellants would fall under clause (a) of Rule 1(3) 
CPC. 
13. In the facts and circumstance of the case, the trial court 
considered the allegation set out in the application as a ground for 
withdrawal. The view taken by the trial court that the suit suffered 
from a formal defect to allow the appellants to withdraw the suit with 
permission to institute a fresh suit, is correct. The High Court, in our 
view, was not right i!1 interfering with the discretion exercised by the 
trial court, permitting the appellants to withdraw the suit with liberty to 
file a fresh suit. Based on the order
passed by the trial court, the appellants 
have already filed suit before District Munsif and the same is numbered 
as O.S. No.11/2015. The High Court while passing the order on 
09.03.2015 does not seem to have kept in view the said suit filed by the 
appellants. In the facts and circumstance of the case, the impugned order 
passed by the High Court cannot be sustained. 
14. The appellants have filed the suit bearing 0.S.No.89 of2004 
way back in 2004 after the witnesses on either side were examined and 
the application l.A.No.424 of2014 was filed under Order XXlll Rule 1 
(3) CPC seeking withdrawal of the suit in the year 2014, after substantial 
progress was made in the suit. In such circumstances, in our view, costs 
of Rs.3000/- awarded by the District Munsif is to be enhanced. 
15. We, accordingly, set aside the impugned order of the High 
Court and restore the order of the trial court with modification to the 
effect that the cost imposed on the appellants is enhanced from Rs.3,000/ 
- to Rs. l 0,000/- The appeal is allowed. No costs. 
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Ankit Gyan 
Appeal allowed. 
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