CPC | “Sufficient Grounds” Under Order 23 Rule 1(3)(b) Grants Court Wide Discretion To Permit Withdrawal & Filing Of Fresh Suit: J&K High Court

“… This expression has to be given wide connotation and it cannot be given a restrictive meaning so as to shut out a fair trial on merits. Merely because some error has been made by the plaintiff in good faith, his case cannot be shut out as the same would cause grave prejudice to him”, Justice Sanjay Dhar underscored.

For context, Order 23 Rule 1 of the CPC deals with withdrawal and abandonment of suits. While a plaintiff can withdraw a suit at any time, he requires permission from the court to file a fresh suit on the same cause of action. This permission may be granted only if the original suit would fail due to a formal defect (like lack of notice, improper court fees, etc.) or there are sufficient grounds, even if not procedural in nature, justifying withdrawal and refiling.

The court was Adjudicating upon a controversy stemming from a civil suit filed by the respondent/plaintiff (Ayaz Ahmad Raina) seeking a permanent prohibitory injunction against the petitioner (Manzoor Ahmad Wani) to restrain interference with his possession over a patch of land. The plaintiff had claimed that in 2010, the defendant had first leased the land to him for a car service station and later agreed to sell it for ₹50,000. Based on this alleged transaction, the plaintiff asserted possession and made substantial investments in developing the property.

The petitioner/defendant, while admitting possession, stated it was only on a license basis for an annual fee and denied any sale agreement. He asserted that he required the land for personal use and had started construction on his own adjacent land after obtaining proper NOCs.

While the case was pending for preliminary statements, the Respondent/plaintiff sought to withdraw the suit under Order 23 Rule 1 CPC, citing factual and legal defects in the earlier pleadings. The trial court allowed this application permitting the plaintiff to file a fresh suit on the same cause of action. The new suit included enhanced reliefs like declaration of ownership, specific performance of agreement, and mandatory injunction for execution of a sale deed based on an agreement.

The petitioner/defendant approached the High Court challenging both the trial court's order permitting withdrawal with liberty to file a fresh suit as well as the maintainability of the fresh suit itself.

The main ground urged was that no formal defect existed in the earlier suit and that reliefs omitted could have been sought through an amendment. It was contended that Order 23 Rule 1(3) CPC allows such withdrawal only when a formal defect is demonstrated, and that the omission of reliefs was no ground for invoking this rule.

Observations Of The Court:

Justice Dhar extensively examined the provisions of Order 23 Rule 1 CPC, emphasizing that sub-rule (3)(b) empowers courts to allow fresh suits where “sufficient grounds” are established. Importantly, the Court clarified,

“The expression 'sufficient grounds' appearing in clause (b) of sub-rule (3) of Rule 1 of Order 23 CPC gives a judicial discretion to the court to consider whether the grounds stated by the plaintiff should be accepted as sufficient to permit him to file a fresh suit after removing the defects in the suit pending before the court.”

The Court rejected the narrow interpretation suggested by the petitioner that clause (b) must be read ejusdem generis with clause (a) (i.e., as being analogous to formal defects). Citing Fateh Shah v. Mst. Bega, AIR 1964 J&K 18, and reaffirmed in Pt. Lok Nath v. Pt. Bhagwan Dass, 1980 KLJ 399, the High Court held that “sufficient grounds” are distinct and independent from “formal defects.”

While taking note of the Bombay High Court judgment in Kashinath v. Vishnu, 2017 SCC OnLine Bom 410, which had taken a restrictive view, insisting that grounds under clause (b) must be analogous to clause (a), the J&K High Court followed the broader and more liberal view. It observed,

“The words 'other sufficient grounds' in sub-clause (b) cannot be read as being analogous to the grounds given in sub-clause (a). These words give a direction to the trial court to allow the withdrawal of the suit, if it is satisfied that there are sufficient grounds for allowing the prayer of the plaintiff.”

The Court also relied on the Supreme Court's ruling in V. Rajendran v. Annasamy Pandian, (2017) 5 SCC 63, which emphasized that courts must exercise discretion cautiously under Order 23 Rule 1(3) but recognized the concept of liberally interpreting formal defects not affecting merits.

Applying this legal framework, Justice Dhar held that the plaintiff's failure to seek appropriate declaratory and specific reliefs in the original suit despite pleading the facts would inevitably result in its failure. Such omission constituted “sufficient ground” within the meaning of Order 23 Rule 1(3)(b) and justified withdrawal and institution of a properly drafted fresh suit, Justice Dhar reasoned.

Dismissing the contention of the petitioner that it was open to the plaintiff to seek amendment of the plaint instead of seeking permission to file fresh suit the court observed that Order 6 Rule 17 CPC (amendment of pleadings) and Order 23 Rule 1 CPC operate in distinct fields and one cannot negate the other.

“.. The provisions contained in Order 6 Rule 17 of the CPC cannot circumvent the provisions contained in Order 23 Rule 1 CPC. If the contention of the petitioner/defendant is accepted, then in every case where a suit can be amended, the permission to withdraw the suit cannot be granted. This would render the provisions of Order 23 Rule 1 CPC redundant”,the court remarked.

Finding no perversity or illegality in the trial court's order the court held,

“The learned trial court, while passing the impugned order and granting permission to the plaintiff to file fresh suit on the same cause of action, has exercised its discretion on sound principles of law. The discretion exercised by the trial court cannot be the subject matter of judicial review...”

Accordingly, the High Court dismissed the petition.

APPEARANCES:

For Petitioner: Mr. Aswad Attar, Advocate.

For Respondent: Mr. Rizwan-ul-Zaman, Advocate.

Case Title: Manzoor Ahmad Wani Vs Ayaz Ahmad Raina

Citation: 2025 LiveLaw (JKL) 209

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