Clause (a) of Rule 2 order 23 CPC allows permission to be granted to file a fresh suit if the court is satisfied that the “suit must fail by reason of some formal defect”. Clause (b) allows for such permission if “there are other sufficient grounds”. We are of course concerned with the latter provision. In our view, for the provision to be at all applicable it is necessary that the facts disclosed in the application seeking permission must, in law, amount to a “ground”. It is only then that the provision becomes applicable, requiring the court to satisfy itself as to the sufficiency (or lack) of the stated ground. The observations of this Court in the cited decision (and in particular in the passage extracted above) are necessarily premised on this. However, if what is stated in the application is not a “ground” at all then obviously no question would arise of the court having to consider whether there is any sufficiency or lack thereof. When the application in the present case is considered all it stated was that the appellant “for the time being doesn’t want to proceed further against” the second respondent, and that the appellant “reserves its rights to sue the said defendant whenever the necessity so arises”. This is, in law, no ground at all. A plaintiff cannot be allowed to file his suit and then, at his sweet will and pleasure, exit the litigation only to enter the arena again as and when he pleases. If this is permissible under Rule 2(b) then that effectively puts paid to the consequences envisaged by Rule 3. And, it must be remembered, there would be nothing, in principle, preventing a plaintiff from doing this ad nauseam. This cannot be the true meaning and scope of Rule 2(b). It is only when the facts disclose what can, in law, be regarded as a “ground” that it becomes necessary for the court to consider the sufficiency (or lack) thereof.
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