JUDGMENT & ORDER : Whether, on the facts and circumstances of this case, the learned Civil Judge, Senior Division, is correct in permitting the respondents to withdraw the suit with a liberty to institute a fresh suit, is the moot point in this civil revision. 2. The controversy is best understood by referring to the brief facts of the case. On or about 15-2-2010, the respondent, who is the plaintiff in the suit, claiming to be a mentally retarded person instituted a suit against the petitioner for declaration and recovery of khas possession as a consequential relief and also for cancellation of instrument under Section 31, Specific Relief Act, 1963. Some other persons were also impleaded as pro forma defendants without claiming any relief from them. The suit was registered as Title Suit No.19 of 2010. The petitioner contested the suit and filed her written statement. She also filed an application under Order VII, Rule 11 read with Section 151 CPC praying for rejection of the plaint, but the application was rejected by the trial court. The civil revision filed by the petitioner before this Court against the rejection of her application came a cropper. Seven issues were framed by the trial court, one of them was Issue No.3, namely, whether the suit is barred by res judicata. On the application of the petitioner, the trial court agreed to hear the said issue No.3 as preliminary issue. After hearing the parties, the trial court, however, took the view that the issue concerning limitation could not be decided without deciding Issue No.6 and, therefore, proceeded to try all issues and directed the respondent to file examination-in-chief by affidavit. 3. The petitioner approached this Court under Article 227 of the Constitution in CRP No.105 of 2015. This Court by the order dated 5-4-2016 set aside the order of the trial court and directed it to decide Issue No.3 and, if necessary, Issue No.6 as preliminary issues keeping in view the peculiar facts and circumstances of this case. This Court also permitted the adduction of evidence with respect only to the mental illness of the plaintiff-respondent and not on any other issue. The trial court thereafter proceeded to examine witnesses for the respondent and examined three witnesses as produced by her. Cross-examinations of those witnesses were also completed. This Court also permitted the adduction of evidence with respect only to the mental illness of the plaintiff-respondent and not on any other issue. The trial court thereafter proceeded to examine witnesses for the respondent and examined three witnesses as produced by her. Cross-examinations of those witnesses were also completed. However, on 28-5-2016, the respondent all of a sudden filed an application under Order 23, Rule 3 read with Section 151 CPC seeking permission to withdraw the suit with liberty to institute a fresh suit in respect of a part of her claim. The petitioner opposed her application and promptly filed her written objection there against. The trial court, after hearing the parties, passed the impugned order on 3-6-2016 allowing the respondent to withdraw the suit with a liberty to file a fresh suit on the same subject-matter subject to payment of cost of Rs.5,000/-. Aggrieved by this, the petitioner is filing this revision. 4. I have carefully gone through the impugned order. What prompted the trial court to allow the application is that this Court had directed it to decide two issues as preliminary issue, but nowhere in the order was the plaintiff-respondent precluded from withdrawing the suit, and the objection raised by the petitioner, therefore, had no legs to stand upon. The trial court thus allowed the respondent to withdraw the suit with a liberty to institute a fresh suit on the same subject-matter subject to payment of cost of Rs.5,000/-. Assailing the impugned order, Mr. A K Bhowmik, the learned senior counsel for the petitioner, submits that the trial court has no jurisdiction to allow the withdrawal of suit with liberty to institute a fresh suit without first satisfying itself that the suit must fail by formal defect or for sufficient ground; there is no finding recorded by it in these aspects of the matter. The trial court, contends the learned senior counsel, has exhibited a clear case of non-application of mind in allowing the withdrawal of suit with liberty to institute a fresh on the ground that the order of this Court did not preclude the respondent from withdrawing the suit by forgetting that such withdrawal can be permitted only after the respondent satisfies the conditions laid down in Order 23, Rule 3, CPC. He, therefore, strenuously urges this Court to set aside the impugned order in so far as it permitted the respondent to institute a fresh suit. 5. Order XXIII, Rule 1, CPC withdrawal of suit or abandonment of part or claim, and the same is reproduced below: “1. (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. *** (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. I may also reproduce Order 23, Rule (4), CPC, which reads thus: (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1); or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.” (emphasis supplied) 6. The aforesaid provisions have been lucidly explained by the Apex Court in K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458 in the following manner: “12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC. 13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases.” 7. On perusing the application for withdrawal of the suit, it is seen that no whisper of statement is made by the respondent as to how the suit must fail by reason of formal defect or as to the existence of sufficient ground for allowing her to withdraw to suit with a liberty to institute a fresh suit. The term “formal defect” is to be given a wide and liberal meaning and must be deemed to connote every kind of defects which does not affect the merit of the case. The term “formal defect” is to be given a wide and liberal meaning and must be deemed to connote every kind of defects which does not affect the merit of the case. For example, misjoinder of parties or of a cause of action or defect with respect to the form prescribed by the rules of procedure and not of substance or erroneous valuation of the subject-matter of a suit or want of statutory notice in the case of suit against the government or public officer are formal defects, for which leave to file a fresh suit may be granted. The respondent, however, merely mentions that “it is felt that the suit may fail by reason of formal defects and, therefore, the plaintiff is required to be permitted to withdraw from the suit with a liberty to file a fresh suit in respect of a part of her claim”. As already noticed, what are those formal defects which would result in failure of the suit of the respondent are conspicuous by their absence in the application. At para 4 of the application, she states that she has some other claims which are not incorporated in the plaint, and she is required to file a fresh suit “after withdrawal herself from this suit with a liberty for the same as otherwise the present suit must fail for formal defects”. At para 5 of the application, she again avers that she is a mentally retarded person “at least from the period of pendency of C.M. Appl. No.72 of 2004 arose from RSA No. 15 of 2000 of the Hon’ble High Court and therefore, any matter or occurrence happened subsequent thereto is liable to be and can be challenged by the Plaintiff and as such the Plaintiff may be permitted to withdraw from the suit with a liberty to file a fresh suit accordingly as otherwise she would suffer irreparable loss and injury”. 8. From the above averments, it is obvious that the facts so projected by the respondent do not remotely come within the expression “formal defects” to come within the meaning of Order 23, Rule 1(3), CPC, but rather touch upon the merit of the case. 8. From the above averments, it is obvious that the facts so projected by the respondent do not remotely come within the expression “formal defects” to come within the meaning of Order 23, Rule 1(3), CPC, but rather touch upon the merit of the case. As to the question whether there are “sufficient grounds” for allowing her to grant the permission, virtually the courts are in agreement that this term should also be construed to be in the nature of technical defect and that a mere failure to adduce evidence is not a “sufficient ground” within this rule. The respondent cannot be allowed to withdraw the suit with liberty to file a fresh suit so as to enable her to improve her case on merit. This is precisely what is sought to be done by her through this application. The grant of leave envisaged in sub-rule (3) is at the discretion of the court, but such discretion is to be exercised by the court with caution and circumspection. Keeping in view that no litigant can be allowed to file suits one after another for the same cause of action, which is not only to cause harassment to the party against whom it is filed but also has an unnecessary impact on the public exchequer and unnecessary load on the court’s time, it has been held that permission can be granted only if the conditions set out in Order 23 Rule 1(3), CPC are satisfied. The trial court is, therefore, not correct in allowing the respondent to withdraw the suit with a liberty to file a fresh case; this amounts to improper exercise of jurisdiction. 9. The result of the foregoing discussion is that this civil revision succeeds. The impugned order is, therefore, set aside. Consequently, the application of the respondent for withdrawal of the suit with liberty to institute a fresh suit ought to be, and is hereby rejected. It shall now be open to the respondent to continue the suit or withdraw it without liberty to institute a fresh suit. Transmit the L.C. record. No costs.