Judgment and Order : Heard Mr. S. Mahajan, learned counsel appearing for the petitioners as well as Mr. B. Saha, learned counsel appearing for the respondent. 2. By filing this petition under Article-227 of the Constitution of India, the petitioners have challenged the order dated 19.11.2016 passed in T.S. 54 of 2016 by the Civil Judge, Sr. Division, Court No. 2, Agartala, West Tripura along with the order dated 23.06.2017 delivered in T.S. 54 of 2016 by the said Court. 3. The respondent filed a suit being T.S. 54 of 2016 for declaration of title and confirmation of possession along with the consequential relief of permanent injunction in respect of the suit land. The petitioners, the defendants in the suit, raised a preliminary objection regarding the maintainability of the suit being barred by resjudicata as the previous suit in respect of the same suit land being T.S. 161 of 2007 was dismissed under Order-IX, Rule8 of the CPC, as the plaintiff did not appear on the day of hearing but the defendant in that suit had appeared. The decree recording dismissal of the suit for non-prosecution was passed. 4. Mr. Mahajan, learned counsel appearing for the petitioners herein has strenuously argued that the suit was therefore barred by the resjudicata as the final order passed in that suit was never challenged by the plaintiff. Thus, the decree attained finality. 5. In the wake of the preliminary objection raised by the defendant petitioners, the plaintiff respondent admittedly filed a petitioner for withdrawal of the suit under Order-XXIII, Rule1 of the CPC with liberty to file a fresh suit, as according to the plaintiff respondent, for subsequent development, there surfaced some formal defect in the suit. The purpose of the suit to some extent has diverged. 6. The trial court by the order dated 19.11.2016 has recorded as under: “Today is fixed for further hearing on the maintainability of this suit. Ld. Advocate, Mr. B. Saha, on behalf of the plaintiff filed one application U/O 23, Rule-1 of CPC for withdrawal of the instant suit with liberty to file afresh on the ground that there has been certain development and also some information come to the knowledge of the plaintiff with was not within his knowledge prior to filing of this suit. The plaintiff also prayed for leave of this court to withdraw the court fees amounting to Rs. 2,500/-. Ld. The plaintiff also prayed for leave of this court to withdraw the court fees amounting to Rs. 2,500/-. Ld. Advocate, Mr. S. Mahajan, for the defendant is present submits that if the prayer of plaintiff is allowed then cost may be imposed. Heard both sides and considered. Taking into consideration the prayer of the plaintiff this Court is hereby grant the plaintiff permission on withdraw the instant suit with liberty to institute a fresh suit in respect of the subject matter without any costs. The prayer of the plaintiff to withdraw the court fees amounting to Rs. 2,500/- only is rejected. This suit is hereby disposed on withdrawal. Make necessary entry in the TR.” 7. In the said order, it has been observed that Mr. Mahajan, learned counsel who was appearing for the defendants had submitted that if the cost was imposed, the prayer for withdrawal might be allowed. Having visited such statement as recorded for the defendants, the defendants filed a petition under Section151 of the CPC for asserting that no such statement was made rather they urged for deciding the issue of maintainability as raised by them. Contrary to what has been observed in the order dated 19.11.2016, they opposed the prayer for withdrawal seriously inasmuch as the suit is law barred. Despite that the order dated 23.06.2017 has been passed by the trial court. Now, both the orders are under challenge in this petition. 8. Mr. B. Saha, learned counsel appearing for the plaintiff respondent has submitted that the plaintiff was dispossessed from the suit land by the purported purchaser and knowledge of the purported sale of the suit land was with the plaintiff from much before during the pendency of the suit. However, that statement has been seriously opposed by Mr. Mahajan, learned counsel appearing for the petitioners herein. 9. Be that as it may, the prima facie this Court is satisfied that the suit would not have failed for the defect of the parties or for the subsequent development that has been canvassed. However, withdrawal of the suit by the plaintiff is the right provided by law. Mahajan, learned counsel appearing for the petitioners herein. 9. Be that as it may, the prima facie this Court is satisfied that the suit would not have failed for the defect of the parties or for the subsequent development that has been canvassed. However, withdrawal of the suit by the plaintiff is the right provided by law. But whether the liberty would be granted or not that issue requires serious consideration by the Civil Court on the touchstone of the conditions as laid down in Order-XXIII, Rule1 (iii) Clauses(a) & (b) which read as follows: “(iii) 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.” 10. Mr. Saha, learned counsel appearing for the respondent has further pointed out that the defendants did not file any objection before 19.11.2016. In this regard, Mr. Mahajan, learned counsel has in order to rebut states that the defendants were not provided any opportunity to file such objection. However, Mr. Mahajan, learned counsel has submitted that with liberty granted by the Court, the defendants filed an objection which was accepted by the court. While issuing the notice in the defendants’ petition filed under Section-151 of the CPC, a copy of the said objection was also served on the plaintiff. On consideration of the said objection, the subsequent order dated 23.06.2017 was passed. 11. Having regard to the circumstances and the submissions made by the learned counsel appearing for the parties, this Court is of the view that what has been provided in the Clause (b) of Sub Rule 3 (iii) of Order-XXIII of the CPC is of relevance and equally of greater amplitude. The Civil Court has the power on considering the pleaded fact on which prayer for withdrawal is structured to allow such liberty on necessity of continuation of the claim or the part of the claim. The Civil Court has the power on considering the pleaded fact on which prayer for withdrawal is structured to allow such liberty on necessity of continuation of the claim or the part of the claim. Even the civil court may refuse it when it does not find any justification to allow it. In this case, the plaintiff had the scope to continue with the suit without withdrawal, by embarking on the other procedure. However, in certain circumstances, the court has the discretion to allow a fresh suit to be filed by the plaintiff. It all depends on the appreciation of the circumstances and the grounds that are resorted by the plaintiff for withdrawal with liberty reserved. While exercising such discretion any right consolidated in favour of the defendants shall not be ignored or negated. 12. However, in this case, while granting such liberty the Court has not given any reason whatsoever, why the liberty was granted. It appears from the reading of the order dated 19.11.2016 that simply on the statement of Mr. Mahajan, learned counsel appearing for the petitioners the prayer for withdrawal was allowed and the liberty to institute fresh suit was granted. Even, on concession, the court cannot grant such liberty. It is the duty of the court to explore whether the Court should at all grant the liberty or not, otherwise the exercise is fraught with abuse of the process of the court which justice always abhors. 13. This Court has also read carefully the order dated 23.06.2017 upon which, this Court finds that the trial court has exceeded the jurisdictional limit by taking the extraneous materials in consideration inasmuch as the petition filed under Section 151 of the CPC was filed for recording the submissions made by Mr. Mahajan, learned counsel at the time of consideration whether the liberty should be granted or not. But the court below has embarked on to discuss materials or statements, including the objection of the defendants. 14. Be that as it may, as Mr. Mahajan, learned counsel appearing for the petitioners has submitted that since the defendants sought the review of the said order dated 19.11.2016, the Court was persuaded to consider the objection as to maintainability of the suit. 15. 14. Be that as it may, as Mr. Mahajan, learned counsel appearing for the petitioners has submitted that since the defendants sought the review of the said order dated 19.11.2016, the Court was persuaded to consider the objection as to maintainability of the suit. 15. Having observed thus, this Court is constrained to observe that the trial court has failed to wake up to its duties having regard to the provisions of law as referred above. As consequence thereof, the orders dated 19.11.2016 and 23.06.2017 are set aside and quashed. The matter is remitted back to the trial court for deciding afresh. As it is agitated that the defendants were not afforded the opportunity to file the objection, they should be allowed to file the objection. At this juncture it is to be noted that the objection that was filed after the order dated 19.11.2016 was passed was entirely invalid. The defendants shall be allowed to file the objection against the prayer for liberty to institute a fresh suit after withdrawal. After hearing, the trial court shall pass the necessary orders having due regard to the provision of Order-XXIII Rule 1(iii) of the CPC. 16. Mr. B. Saha, learned counsel appearing for the respondent has submitted that in pursuance to the order dated 19.11.2016, the plaintiff has already instituted a suit. It goes without saying that the consequence of this order shall follow. It is the plaintiff who would now take a decision on the suit else the legal consequence is imminent. But this Court should observe that if the plaintiff decides to withdraw the suit pending decision in T.S. 54 of 2016, he may be allowed to withdraw the suit without any prejudice. With this observation and direction, this petition stands allowed to the extent as indicated above. There shall be no order as to costs. The defendant petitioners are directed to refund the cost of Rs. 1000/- which they received from the plaintiff respondent in terms of the impugned order within fortnight from today.