Permission to withdraw suit with liberty to file afresh requires establishing formal defects or sufficient grounds.

The petitioner filed Title Suit No. 76 of 2008 seeking to declare two sale deeds (dated 1988 and 1991) executed in favor of the respondent as null and void.

This suit was tried analogously with an Eviction Suit (No. 04 of 2007) filed by the respondent against the petitioner.

After eleven years of litigation, and once the plaintiff’s evidence was closed and eight defense witnesses had been examined, the petitioner filed an application under Order XXIII Rule 1 of the CPC to withdraw the suit with liberty to file a fresh suit.

The petitioner claimed this was necessary because no notice under Section 80 of the CPC was issued to the State of Bihar prior to the suit.

The trial court allowed the withdrawal but denied the liberty to file a fresh suit; the petitioner challenged this denial.

1. Whether the failure to serve a notice under Section 80 of the CPC constitutes a "formal defect" or "sufficient ground" justifying the grant of liberty to institute a fresh suit under Order XXIII Rule 1(3) of the CPC at the final stage of trial.

The Court applied Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908, which permits withdrawal with liberty only if a suit must fail by reason of a "formal defect" or if there are "sufficient grounds".

The Court relied on V. Rajendran vs. Annasamy Pandian (D) Thr. Lrs. Karthyayani Natchiar (2017), which defines a "formal defect" as a procedural error (such as want of notice under Section 80 CPC or improper valuation) that does not affect the merits of the case, but emphasizes that such liberty is not an absolute right and must not encourage the abuse of judicial process.

The Court observed that while a "want of notice u/s 80 CPC" is generally classified as a formal defect, the application of Order XXIII Rule 1(3) is subject to the Court’s satisfaction regarding the stage of the proceedings and the potential for harassment of the opposing party.

The Court noted that the petitioner sought this liberty at the "fag end of the trial" after 11 years of litigation and after substantial evidence had already been adduced by both sides.

The Court reasoned that the petitioner failed to provide a reasonable explanation for the extreme delay in invoking this provision.

It held that granting liberty to file a fresh suit at this advanced stage would be improper as it would subject the respondent to renewed litigation after over a decade of contest.

The Court dismissed the Civil Miscellaneous Application and upheld the trial court's order dated 23.05.2019.