A curable defect in plaint signing does not justify withdrawal with liberty to sue afresh.

Respondent No. 1 filed a 2014 suit seeking to set aside two sale deeds and obtain a permanent injunction.

The plaint was signed by her power-of-attorney holder, not by the plaintiff, and the plaintiff’s evidence was concluded in January 2023.

After the Trial Court rejected her application to amend the plaint and implead another purchaser, she sought permission under Order XXIII Rule 1(3) CPC to withdraw the suit with liberty to file afresh, citing a technical defect in the plaint.

The Trial Court allowed the application, subject to limitation.

The petitioner challenged that order under Article 227 of the Constitution.

1. Whether the Trial Court was justified in permitting withdrawal of the suit with liberty to institute a fresh suit on the ground that the plaint was not signed by the plaintiff

2. Whether granting that permission after the plaintiff’s evidence had concluded would prejudice the defendants by allowing the plaintiff to overcome deficiencies in her case

Under Order XXIII Rule 1(3) CPC, a court may permit withdrawal with liberty to bring a fresh suit only where it is satisfied that the suit must fail because of a formal defect or that other sufficient grounds justify a fresh suit; the power is discretionary and is guided by the public-policy objective of preventing repeated suits on the same cause of action.

Order VI Rule 14 CPC requires pleadings to be signed by the party and the pleader, if any, but Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, establishes that non-signing due to bona fide error is a curable defect that may be rectified before judgment.

The Court also relied on V. Rajendran v. Annasamy Pandian, (2017) 5 SCC 63, on the conditions governing withdrawal with liberty to sue afresh.

The defect relied on by the plaintiff—the plaint’s non-compliance with Order VI Rule 14 CPC—was curable and could be corrected in the existing suit.

The Court therefore found it insufficient to justify withdrawal with liberty to bring a fresh suit.

Further, the plaintiff’s evidence had already concluded, and permitting withdrawal at that stage could prejudice the defendants by giving the plaintiff an opportunity to overcome deficiencies in her evidence.

The Trial Court’s decision accordingly amounted to a jurisdictional error.

The suit was restored to its original number for proceedings in accordance with law.