5. Thus, the Court while exercising the power under Order 23 Rule 3 (a) and (b) s
hould be cautious and balance the relative convenience/ inconvenience or prejudice that would
be caused to the parties to suit by allowing or rejecting an application. Whether the suit sho
uld be permitted to be withdrawn with a liberty to file fresh suit or not depends on the facts
and circumstances of each case. Such a prayer can be entertained at any stage of the suit. A
similar view is taken by this Court in the case of Sayed Mansoor Saheb Peer Bije and Ors. Vs.
State of Orissa and Ors., reported in AIR 2007 Orissa 31. There can be no dispute to the posit
ion of law that the Court while adjudicating an application under Order 23 Rule 3 (a) and (b)
cannot refuse to grant liberty to file a fresh suit while granting the prayer for withdrawal o
f the suit. Certainly, it has the discretion to refuse the prayer for withdrawal of the suit.
Thus, the Court should allow an application under Order 23 Rule 3 (a) and (b), only when the p
laintiff makes out sufficient grounds to file a fresh suit in respect of such subject matter o
r part thereof for which the leave is sought for.
6. Learned trial Court has not at all delved into these material aspects while co
nsidering the petition under Order 23 Rule 3(a) & (b), CPC.
7. In that view of the matter, the impugned order is set aside and the matter is
remitted back to the learned Civil Judge (Junior Division), Champua to consider it afresh on i
ts own merit after giving opportunity to the parties. It is made clear that the Court has expr
essed no opinion on the merit of the contentions raised by the parties.
ss The C.M.P. is accordingly disposed of.
