25 April 2024 Lease >> Property & Real Estate   |   Property/Real Estate Law >> Property & Real Estate  

A recent court order has allowed the withdrawal of a civil suit with permission for the plaintiff to file a fresh suit on the same cause of action. The case involved a lease agreement dispute where the suit was filed in the wrong name.

Background:

The plaintiff, allegedly "M/s Banjara Mountain Retreat," filed a suit against the defendant for permanent injunction and damages related to a lease agreement. However, the defendant contested the suit arguing that there was no privity of contract between "M/s Banjara Mountain Retreat" and himself. The plaintiff then filed an application to withdraw the suit and file a fresh one, claiming the original suit was filed in error.

Court's Reasoning for Allowing Withdrawal:

The court considered the reason for withdrawal a "formal defect." The suit was filed under the name "M/s Banjara Mountain Retreat," which the plaintiff claimed was not a legal entity. Since there was no legal standing for the named plaintiff and no contract with the defendant under that name, the court allowed the withdrawal under Order XXIII Rule 1 of the Civil Procedure Code (CPC). This rule allows withdrawal upon showing a formal defect or sufficient grounds to file afresh.

Conclusion:

The court allowed the withdrawal of the original suit (Civil Suit No.96 of 2021) with permission to file a fresh suit. The plaintiff is required to pay a cost of Rs.20,000 to the defendant when filing the new suit. Additionally, the court fee paid for the withdrawn suit will be refunded along with any money deposited by the plaintiff with the court. A second application challenging the original plaint (OMP No.651 of 2022) became infructuous due to the court's decision on the withdrawal application. Since the suit is withdrawn, the challenge to the plaint becomes irrelevant. The plaintiff can now file a fresh suit on the same cause of action, addressing the formal defect in the original suit. The order mentions a separate contempt petition that will be addressed in a different proceeding.