(1) Heard the learned counsel for the petitioner as well as smt. Jyothi kiran for the respondents.
(2) The c. R. P. Is directed against the order passed by the court below in i. A. No. 1962/97 in o. S. No. 713/95, by the i asst. Judge, city civil court, secunderabad, rejecting the application filed for permission to the petitioner to withdraw the suit, with liberty to institute a fresh suit which was filed and numbered as o. S. 727/94.
(3) The petitioner filed o. S. 713/93 against the respondent without issuing statutory notice under section 685 of the h. M. C. Act. Admittedly, want of statutory notice is fatal to the maintainability of the suit. He, therefore, wants to withdraw the suit. In the instant case, the petitioner even before the application was allowed, instituted a fresh suit on the same cause of action in o. S. 727/94. Now, the only question that arises for consideration is whether the filing of the second suit on the same cause of action precludes the court to grant permission under order 23 rule 1 (3) c. P. C. , to withdraw the first suit. The court below held that order 23 rule 1 (3) cpc cannot be applied to the facts of the case in view of the fact that the petitioner had already instituted a fresh suit without withdrawing the earlier suit and without obtaining permission to file a fresh suit.
(4) It is contended by the learned counsel for the petitioner that as the earlier suit was defective and it was liable to be dismissed on the ground of want of statutory notice, it falls squarely within the ambit of order 21 rule 1 (3) cpc. He further contends that the mere act of filing a fresh suit already does not preclude the court from exercising its powers under the above provision.
(5) Under order 23 rule 1, sub - rule (3) cpc it is permissible for the court, if the suit must fail for reason of some formal defect, to grant permission to withdraw the suit, with liberty to institute a fresh suit. In the present case, the earlier suit should fail for want of statutory notice. Therefore, the petitioner will come within the four corners of sub - rule (3) of rule 1 of order 23. He is, therefore, entitled to seek the grant of permission to file a fresh suit on the same cause of action. The only defect in the instant case is that before obtaining such a permission, the petitioner filed a fresh suit for the same cause of action. It is the contention of the petitioner that there was an imminent threat of demolition and statutory notice could not be given before filing the first suit. Hence, he had to file the suit which is now sought to be withdrawn and another suit was filed on the same cause of action. The learned counsel for the petitioner relied on a decision in b. Rizwang baig v. Municipal corporation of hyderabad, 1989 (1) aplj 480 wherein it was held by the learned single judge of this court, following the decision of the kerala high court in ammini kutty v. George abraham, air 1987 ker. 246, that merely because a fresh suit has already been instituted, that should not be a ground for not according permission to withdraw the earlier suit and that if the suit was allowed to be withdrawn, it should be recorded as having never been brought. It is the view of the learned judge of kerala high court in the above case (supra) that - ". It is not really material whether the permission is granted before or after the institution of a fresh suit. Even if the institution of the second suit before obtaining of permission to withdraw the first is not proper, that can at best only be an irregularity, which should be considered as cured at least from the time permission is obtained. It is settled law that grant of permission under the rule is no guarantee for the maintainability of the second suit; that is a question which will have to be decided separately, as and when it is raised in ihe subsequent proceedings. "thus, the only question lhat should fall for consideration for the court when an application was filed under order 23 rule 1 sub - rule (3) cpc, is whether the suit must fail by reason of some formal defect as stipulated in clause (a) of sub - rule (3) (we are not concerned now with sub - rule (b)). If the court is satisfied that the case is covered by clause (a) of sub - rule (3) , then the court is empowered to grant permission to file fresh suit in respect of the same subject matter. The court should not really concern itself whether a fresh suit is already filed or not. It is wholly immaterial consideration for exercising the jurisdiction under sub - rule (3) of rule 1, order 23 c. P. C. Whether the second suit was validly filed or whether it was vitiated by the principle of res judicata are matters entirely within the jurisdiction of the said court where it was filed. It should be made clear that even during such consideration, as has been held by the learned judge of kerala high court in the above decision ammini kutty's case (supra) that filing of fresh suit without obtaining permission was "improper and at best only be an irregularity, it should be considered as cured alleast from the time permission is obtained. " this approach, to my mind, is salutary and serves the interests of justice. The procedural rigour cannot be allowed to come in the way of substantive justice. Filing of the second suit without actually obtaining permission to withdraw the first suit should only be treated as aprocedural irregularity, which is curable. The permission to withdraw the first suit is only to file a fresh suit and when such permission is granted, the suit already instituted should not fail. The permission takes away the bar of res judicata. Hence the second suit should be held as maintainable.
(6) In the above circumstances, i am of the view that the petitioner is entitled to withdraw the first suit with liberty to institute a fresh suit on the same cause of action and that the suit already filed for the same cause of action is not an obstruction for invoking order 23 rule 1 (3) c. P. C.
(7) The c. R. P. Is accordingly allowed and the order of the court below is set aside. I. A. N0. 1962/97 is allowed. There shall be no order as to costs.