Withdrawal with liberty to refile requires judicial satisfaction of a formal defect or sufficient grounds.

Respondent No. 1/plaintiff instituted a suit for declaration and permanent injunction, in which the petitioner was impleaded as defendant No. 3.

The petitioner filed an application under Order VII Rule 11 CPC seeking rejection of the plaint and also filed a reply to the plaintiff’s response.

Thereafter, the plaintiff applied under Order XXIII Rule 1 read with Section 151 CPC to withdraw the suit with liberty to institute a fresh suit, citing formal defects including failure to challenge sale deeds dated 17 January 2024 and 24 June 2024 and improper valuation.

The Second Civil Judge, Senior Division, Bhitarwar, allowed the application by order dated 11 February 2026 in RCS-A No. 108/2024.

The petitioner challenged that order under Article 227 of the Constitution, contending that the defects were curable by amendment and that withdrawal would cause prejudice and harassment.

Whether the trial court correctly permitted withdrawal of the suit with liberty to file a fresh suit under Order XXIII Rule 1(3) CPC.

Whether the formal defects stated by the plaintiff—particularly failure to challenge the relevant sale deeds and improper valuation—justified granting permission to institute a fresh suit.

Whether the trial court’s exercise of discretion warranted interference by the High Court under Article 227 of the Constitution.

The Court applied Order XXIII Rule 1(3) CPC, under which withdrawal of a suit with liberty to institute a fresh suit is discretionary and permissible only where the court is satisfied that the suit must fail because of a formal defect or that sufficient grounds exist for allowing a fresh suit.

Relying on V. Rajendran and Another v. Annasamy Pandian (Dead) through Legal Representatives Karthyayani Natchiar (Dead), (2017) 5 SCC 63, the Court held that the plaintiff has no absolute right to such permission and that the court must record satisfaction regarding a formal defect or sufficient grounds.

It also relied on K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458, which explains that “formal defect” includes procedural defects such as improper valuation, insufficient court fee, misjoinder, failure to disclose a cause of action, or defects in identification of the subject matter, provided they do not affect the merits of the claim.

The High Court further recognised that interference under Article 227 is unwarranted where the subordinate court has exercised its discretion judicially and in accordance with law.

The trial court’s order was upheld because the plaintiff’s application specifically identified the defects in the plaint, explained their origin, and stated why withdrawal with liberty to file afresh was sought.

The defects concerning the non-challenge to the sale deeds and valuation were treated as formal or procedural defects affecting the proper institution and effective adjudication of the suit, rather than as defects going to the merits of the plaintiff’s claim.

Applying V. Rajendran, the High Court found that the trial court had exercised the discretion under Order XXIII Rule 1(3) CPC on relevant grounds and after considering the application.

Since the suit was still at an initial stage, permitting withdrawal did not prejudice any vested or substantive right of the petitioner.

Consequently, the limited supervisory jurisdiction under Article 227 could not be invoked merely because the petitioner preferred amendment or rejection of the plaint as an alternative course.

The order dated 11 February 2026 was not shown to suffer from jurisdictional error, illegality, or improper exercise of discretion.

The miscellaneous petition was accordingly dismissed, and any pending applications were directed to stand closed.