02.09.2024  Mr. Sherder Abul Hossain with

Md. Zahangir Alam, Advocates

                                            .......For the plaintiff-petitioner. Mr. Sree Probir Kumar Ghosh, Advocate

......For the defendant-opposite parties

This is an application for withdrawal of the Suit  for  formal  defect  with  permission  to  sue

afresh.

It is contended in the application that the the petitioner as plaintiff filed Other Class Suit No. 39 of 2019 praying for declaration of title in respect of 1.29 acres of land although the learned Advocate at the time of preparation of the plaint described the chain of title of the suit land which ought to have mentioned in the schedule of the plaint but did not resulting the averments of the plaint  in  comparison  with  the  schedule  of  the plaint do not disclose the meaningful scene. The constructions of the plaint have been made in a defective  way  in  which  the  real  controversy cannot be adjudicated in accordance with law. It is further contended that in a suit of this nature it is  not  possible  to  cure  the  defect  by  way  of amendment of the plaint and in the attending facts and circumstances the petitioner-applicant needs to withdraw the suit with kind   permission to sue afresh.

Mr.  Sherder  Abul  Hossain,  the  learned advocate  appearing  for  the  applicant  (plaintiff- petitioner) after placing the application submits that in the attending facts and circumstances of the case the formal defects which cannot be cured by  way  of   amendment  of  the  plaint  and  the assertions made in the plaint  being not clear and lump in nature and unless the suit is withdrawn for  formal  defect  to  sue  afresh,  the  innocent plaintiff-petitioner-applicant  shall  suffer irreparable loss and injury for no fault of his own.

Finally, Mr. Sherder Abul Hossain submits if the suit is allowed to be withdrawn for formal defect  with  a  permission  to  sue  afresh,  the plaintiff-petitioner shall deposit a good amount of money as costs as per direction of this court in favour of the contesting defendants.

Mr. Sree Probir Kumar Ghosh, the learned Advocate  appearing  for  the  defendant-opposite parties, on the other hand, at the very outset upon referring  a  decision  reported  in  46  DLR  246 submits  that  the  plaintiff-petitioner  having  not specifically stated in the application as to formal defects  and  as  such,  the  application  for withdrawal of the Title Suit with a permission to sue afresh is liable to be rejected.

Having  heard  the  learned  Advocates  for both the sides, perused the application and other materials on record.

It appears that the plaintiff-petitioner stated in the application that his engaged Advocate in the  trial  Court  due  to  his  mistake  or  lack  of experience could not draft the plaint of the suit stating chain of title of the suit properly resulting the schedule of the plaint does not express the meaningful sense and position of the suit land. It is also stated in the application that the plaint has been drafted in a defective manner which cannot adjudicate the matter in accordance with law.

Considering the facts and circumstances of the case as revealed from the materials on record, I  find  little  substance  in  the  application  for withdrawal of the Title Suit with permission to sue  afresh  filed  by  the  plaintiff-petitioner  after being unsuccessful in both the Courts below.

However, in the facts and circumstances of the case and law bearing on the subject and in view of then submission of the learned advocate for  the  applicant,   the  application  dated 28.08.2024  for  withdrawal  of  the  suit  with permission to sue afresh is allowed.

The Rule is, therefore, discharged. It is the option or desire of the plaintiff-petitioner to bring a fresh suit on the same cause of action. The order

of status-quo granted earlier by this Court stands vacated.

However, if the plaintiff-petitioner wants to file  a  fresh  suit,  he  shall  deposit  a  cost  Taka 25,000/- in favour of the contesting defendants in court  and  the  contesting  defendants  will  be  at liberty to withdraw the same.

Let a copy of this order along with lower Court’s record be sent down at once.