A. SEETARAM REDDY, J.

( 1 ) THE praintiff is the petitioner. He filed a suit against the Municipal corporation of Hyderabad for perpetual injunction restraining the defendants from demolishing a portion of the premises. Pending the suit interim injunction was granted. However, in C. R. P. 1292/87 the petitioner was permitted to continue the plastering, flooring, fixation of shutters, electrical and other sanitary fittings and the like to make the construction habitable. Thereafter an interlocutory application was filed under Order 23, Rule 1 sub-clause 3 praying to permit the plaintiff to withdraw the suit with liberty to institute a fresh suit which was already filed as O. S. 2404/88 in the Court of the Hnd Asst. Judge, City Civil Court, Hyderabad in respect of the subject matter of this suit. The defendants in the counter filed to the said i. A. averred that notice under Sec. 685 of the Hyderabad Municipal corporation Act (Act for short) is not necessary prior to the institution of the suit. The petitioner s case was that a suit will fail for the reason of non-issuance of statutory notice. The said I. A. was dismissed stating as under :"keeping in view The principlc laid down in the last two cases cited it can be said that the plaintiff has already accrued the advantage of order passed in suit in interlocutory application without restoring the status quo ante he should not be permitted to withdraw it as the bent fit to obtain was subject to result of suit. Finally, the plaintiff has already filed a suit without obtaining permission of the court. This Court cannot grant permission with retrospective effect and fill up the lacuna. The petitioner has prayed in bis petition to grant permission to withdrawn the suit and permit him to file a fresh suit (which is) O. S. 2404/88----- -. . . . . . . . . . . The petitioner has remained silent and not informed the court of appeal that a suit is already filed keeping in view the background I do not think it proper to grant permission to withdraw. "

( 2 ) IT is this order that is impugned by the plaintiff in this revision contending that the learned Judge erred in dismissing the I. A. seeking permission to withdraw the srit. Filing of a fresh suit cannot be a ground for rejecting the I. A. as it is not necessary that permission to institute a fresh suit must precede any filing of the fresh suit. The case laws sought to be relied on to reinforce the said contentions are as follows :

( 3 ) IN Ammini Kutty vs. George Abraham it svas held as follows:"civil P. C. (5 of 1908) 0. 23, Rule 1: Withdrawal of suit: permission for, can be granted even after the institution of a second suit and not only when such a suit is to be instituted. "

( 4 ) IN L. f. C. of India vs. Escorts Limited - a Constitution Bench of the Supreme Court held as follows:"section 29 (1) which is also relevant for the purposes of this case is as follows : 29 (1) Without prejudice to the provisions of Sec. 28 and sec. 47 and notwithstanding anything contained in any other:provision of this Act or the provisions of the Companies Act, 1956, a person resident outside India (whether a citizen of India or not) or a person who is not a citizen of India but is resident in India, or a company (other than a banking company; which is not incorporated under any law in force in India or in which the non-resident interest is more than forty per cent, or any branch of such company, shall not, except, with the general or special permission of the Reserve Bank (a) carry on in India, or establish in India a branch, office or other place of business for carrying on any activity of a trading, commercial or industrial nature, other than an activity for the carrying on of which permission oi the Reserve Bank has been obtained under Sec. 28; or (b) acquire the whole or any part of any undertaking in India of any person or company carrying on any trade, commerce or industry or purchase the shares in India in any such company. Section 29 (2) makes provision for applying for permission to continue after the commencement of the Act any activity of the nature mentioned in clause (a) of Sec. 29 (1) which was being canicd on at thr commencement of the Act, while Sec. 29 (4) makes similar provision for applying for permission to continue to hold after the commencement of the Act shares of a company referred to in Sec. 29 (1) (b) which were held by a person at the commencement of the act. 15. Section 30 prescribes that no national of a foreign State shall, without the previous permission of the Reserve Bank (i) take up any employment in India, or (ii) practice any profession or carry on any occupation, trade or business in India. . . ""34. Two of the principal questions argued before us were whether the permission contemplated by Sec. 29 was previous permission or whether permission could be granted ex post facto and whether the purchase of the shares by foreign investor of Indian nationality/oricin in this case involved any contravention of the fera or the Non-Residents Investment Scheme. . . ". "60. The High Court after an elaborate enquiry summarised their conclusions and granted reliefs in the following manner: rule nisi is made absolute as under : section 29 (1) (b) of F. E. R. A. is mandatory. NO N. R. I. Investor is authorised to purchase shares in an Indian Company without prior permission of the RBI under Section 29 (1) (b) of FERA; any purchase of shares without such prior permission is illegal. Neither the Union of India nor the RBI is empowered to order otherwise either by issuing directions under Section 75 or under Section 73 (3) of the fera; nor or they empowered to grant permission after the shares are purchased to as to validate such purchases or to permit holding of the shares purchased without obtaining prior permission. The press release dated 17th September, 1983 (Exh. a ) the Circular dated 19th September, 1983 (Exh. b ) and the letter dated 19th september, 1983 (Exh. c ) cannot operate retrospectively so as to validate the purchase of shares made by N. R. E Companies, which were ineligible on the date of purchase, nor can they authorize purchase of shares without obtaining prior permission of the RBt under Sec. 29 (1) (b) of the FERA. In so far as the impugned press release, circular and the letter permitting the respondent-companies to hold the shares purchased without obtaining prior permission of the R. B. I. , they are ullravires of Section 29 (1) (b) of the FERA and the powers vested in the Union of India under Sec. 75 and the R. B. I, under Section 73 (3) of the FERA. To that exlent, they are void and inoperative both prospsctively and retrospectively. The impugned press release and the Circular, however, amount to amending the Portfolio Investment scheme with full repatriation benefits introduced under Circular No. 9, dated 14th April, 1982 (Exh. g ) and such amendment operates only prcspectively. A writ of mandamus shall issue restraining respondents Nos. 1 and 2 from issuing any directions (a) to register transfer of shares purchased by the respondent companies (which form the subject matter of this writ petition) pursuant to the letter dated 19th Sept. 1983. (Exh. c ); and (b) to further forbear from implementing the said circular dated 19th Sept. 1983 (Exh. b ) and the said letter dt. 19th Sept. 1983 (Exb. c ) with respect to the shares purchased by the respondent-companies which form the subject matter of this writ petition. There shall be a declaration that the action of the respondent no. 18 in issuing the impugned requisition notice is contrary to the provisions of Sec. 284 of the Companies Act and ultra vures the powers vested in the L. I. C. under Sec. 6 of the L I. C. Act and contrary to the intcndmenl of the provisions of the L. l. C. Act. The impugned requisition notice offends the principles of natural justice. The action of the l1c in issuing the impugned requisition notice is an arbitrary and mala fide action for collateral purpose; it is violative of Article 14 of the Constitution of India. The Union of India and the RBI respondents Nos. 1 and 2 are in no way responsible for the action of the l1c in this regard. The allegation of mala fides made against them and Union Finance Minister are unsubstantiated. The requisition notice and the resolutions passed at the meeting held in pursuance of the said notice are quashed. A writ of Mandamus shall issue restraining the respondents from taking any steps or action in pursuance of the resolutions passed in the meeting held pursuant to that notice or any step or action on or under or in furtherance of the impugned requisition notice. ""61. From what has been narrated above, one of the principal questions to be considered is seen to be whether the Reserve Bank of India had the power or authority to give ex post facto permission under Sec. 29 (1) (b) of the Foreign Exchange Regulation Act for the purchase of shares in India by a company not incorporated in India or whether such permission has necessarily to be previous permission". 62. We do not purpose to refer to any dictionary to find out the the meaning of the word permission whether the word is comprehensive enough to include subsequent permission We will only refer to what Sir Shah Sulaiman, C. J. said in Shakir Hussain vs. Chandoo Lal, (AIR 1931 All 567 ). "ordinarily, the difference between approval and permission is that in the first the act holds good until disapproved, while in the other case, it docs not become effective until permission is obtained. But permission subsequently obtained may all the same validate the previous act. ""63. We have already extracted Sec. 29 (1) and we notice that the expression used is "general or special permission of the Reserve bank of India" and that the expression is not qualified by the words "previous" or "prior". While we are conscious that the word "prior" or "previous" may be implied if the contextual situation or the object and design of the legislation demends it, we find no such compelling circumstances justifying reading any such implication into Sec. 29 (1 ). On the other hand, the indications are all to the contrary. We find, on a perusal of the several different Sections of the very Act, that the Parliament has not been unmindful of the need to clearly express its intention by using the expression "previous permission" whenever it was thought that "previous permission" was necessary. In Secs. 27 (1) and 30, we find that the expression permission is qualified by the word previous and in Sections 8 (1), 8 (2) and 31, the expression general or special permission is qualified by the word "previous" whereas in Sections. 13 (2), 19 (1), 19 (4), 20, 21 (3), 24, 25, 28 (1) and 29, the expressions permission and general or special permission remain unqualified. The distinction made by parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away by us. That is not the way to interpret statutes. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision may not be disregarded. In our view, the Parliament deliberately avoided the qualifying word previous in Sec. 29 (1) so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission to non-resident companies to purchase shares in Indian Companies. The object of the Foreign Exchange Regulation Act, as already explained, by us, undoubtedly, is to earn, conserve, regulate and store foreign exchange. The entire scheme and design of the Act is towards that end. Originally the Foreign Exchange Regulation act, 1947, was enacted as a temporary measure, but it was placed permanently of the Statute Book by the Amendment Act of 1957. The Statement of Objects and Reasons ofthe 1957 Amendment act expressly stated, "india still continue to be short of foreign exchange and it is necessary to ensure that our foreign exchange resources are conserved in the national interest. "in 1973, the old act was repealed and replaced by the Foreign Exchange regulation Act. 1973, the long title of which reads : "an Act to consolidate and amend the law regulating certain payments, dealings in foreign exchange and securities, transactions indirectly affecting foreign exchange and import and export of currency and bullion, for the conservation of foreign exchange resources of the country and the proper utilisation thereof in the interest of the economic development of the country. " We have already referred to Sec. 76 which emphasis that every permission of licence granted by the Government or the Reserve Bank of India should be animated by a desire to conserve the foreign exchange resources of the country. The Foreign Exchange Regulation Act is, therefore clearly a statute enacted in the national economic interest. When construing statutes enacted in the national interest, we have necessarilv to take the broad factual situations contemplated by the Act and interpret its provisions so as to advance and not to thwart the particular national interest whose advancement is prrpnsed by the legislation. Traditional norms of statutory interpretation must yield to broader nations of the national interest. If the legislation is viewed and construed from that prospective, as indeed it is imperative that we do, we find no difficulty in interpreting permission to truan permission previous or subsequent, and we find no justification whatsoever for limiting the expression permission to previous permission only. In our view, what is necessary is that the permission of the reserve Bank of India should be obtained at some stage for the purchase of shares by non-resident companies. 64. An argument which was strenuously pressed before us by Shri f. S. Nariman, learned Senior Advocate for the company, was that the very scheme of the Act shows that the psrmission contemplated by Section 29 (1) could only be previous permission notwithstanding the circumstance that the word previous does not qualify the expression general or special permission in Sec. 29 (1) though it does in several other provisions. According to sri Nariman, the Act was designed not merely to attract but also to regulate the inflow of Foreign Exchange. That was why, he said, the provisions were very stringent. We have no hesitation in agreeing with Mr. Nariman that while the inflow of Foreign exchange is welcomed by the Act, the inflow is also subject to stringent checks as otherwise in no time the economy of the country will be swamped with Foreign money and taken over by giant multinationals. But that really does not affect the interpretation of the expression permission in Section 29 (1 ). The reserve Bank of India is not bound to give ex post facto permission whenever it is found that business has been started or shares have been purchased without its previous permission. In such cases, wherever the Reserve Bank of India suspects an oblique motive, we presume that the Reserve Bank of India will not only refuse permission but will further resort to action under Sections 50, 61 and 63, not merely punish the offender but also confiscate the property involved. We do not think that the scheme of the act mak s previous permission imperative under Section 29 (1) though the failure to obtain prior permission may expose the loreign investor to prosecution, penalty, conviction and confiscation if permission is ultimately refused. Even if permission is granted, it may be made conditional. The expression special permission is wide enough to take within its stride a conditional permission the condition being relevant to the purpose of the statute, in this case, the conservation and regulation of foreign exchange. For example, ex post facto permission may be granted subject to the condition that the person purchasing the shares will not be entitled to repatriation benefits. 65. Shri Nariman then suggested that even if we look at the provisions of Section 29 by themselves, it would be clear that the permission contemplated by Section 29 could only be previous . He pointed out to us that while Sections 29 (2) and 29 (4) made due provision for applying for permission to continue to carry on any activity of the nature mentioned in Section 29 (1) (a) and continue to hold shares of a company of the character mentioned in Section 29 (1) (b) if such activity was carried on and such shares were held on the date of the commencement of the Act, no such provision was found for the application for permission to carry on such activity, or to hold such shares if such activity was commenced or if such shares were acquired after the commencement of the Act but without the previous permission of the reserve Bank of India. It was suggested that the very absence of any prescribed form for the grant of permission for an activity started or shares acquired subsequent to the commencement of the Act without previous permission of the Reserve Bank of India were clearly indicative of the imperative nature of the need for previous permission. It was submitted that whatever argument was possible in regard to the acquisition of shares it was clear that no activity of the nature mentioned in Section 29 (1) (a) could be commenced without the previous permission of the reserve Bank. Since the word general or special permission of the Reserve Bank occurring in Section 29 (I) qualified both clauses (a) and (b) the expression had to be given the same meaning with rcfercncc to Clause (b) as it had to be given with reference to Clause (a) and that was that previous permission was necessary. The argument is attractive and not altogether without substance but it proceeds on the assumption, for which there is no basis, that permission required for carrying on business under Sec. 29 (1) (a) must necessarily be previous permission. We do not think that the Parliament intended to lay down in absolute terns that the permission contemplated by Section 29 (1) had necessarily to be previous permission. The principal object of section 29 is to regulate and not altogether to ban the carrying on in India ot the activity contemplated by Clause (a) and the acquisition of an undertaking or shares in India of the character mentioned in Clause (b) The ultimate object is to attract and regulate the flow of Foreign Exchange into India If that mu;h is obvious, it becomes evident that the Parliament did not intend to adept too rigid an attitude in the matter and it was, therefore, left to the Reserve Bank of India than whom there could be no safer authority in whom the power may be vested, to grant permission, previous or expost facto, conditional or unconditional. The Reserve Bank could be expected to use the dis:retion wisely and in the best interests of the country and in furtherance of declared Governmental fiscal policy in the matter of Foreign exchange.

( 5 ) IN Abdul Kareem vs. Municipal Corporation of Hyderabad, 3 it was held as follows :"4. The trial Court held that the notice is obligatory and dismissed the suit on that ground. The appellate court has however held that no such notice is necessary in the circumstances of the case. But in as much the appellate Court has held against the appellant on merits, he has filed this Second Appeal. I am of the opinion that the respondent is entitled to support the decree of the appellate Court on the ground of maintainability of the suit though no appeal or cross-objections have been preferred by it against the said findings. 1 am of the opinion that in view of the express averments in the plaint Section 685 of the Act is attracted. It is clear from the plaint averments that the suit was necessitated because of the notice issued by the Corporation and because of the threatened removal of the constructions raised by the plaintiff. Mr. Shaik Mahhoob Ali, the learned Counsel for the appellant however sought to rely a upon the decision of Vaidya, J. in Hyderabad municipality vs. T. V. Sarmal and the decisions of the Supreme court in Devi Singh vs. Hyderabad Municipality to contend that in respect of a fun her threatened action no notice is necessary. But I am of the opinion that the said decisions are of no help to the plaintiff. In Hyderabad Municipality vs. T. V. Sarmal (supra) there was no notice by the Corporation which was challenged nor was any act done or was purported to be done under the Act. That was a case where the plaintiff stated that he has constructed a building, as he was entitled to according to the Act, and that the defendant should be restrained from interfering with the construction. The defendantcorporation had not issued any notice purporting to remove the construction. It was therefore stated that Section 685 of the Act is not attracted. Same is the case with the decision in Devi singh vs. Hyderabad Municipality (supra ). There also there was no notice nor any other Act done by the Corporation under the Act or purported to act under the Act. But that is not the situation here. Issuance of notice is undoubtedly an net done under the Act. The notice being obligatory, the suit is liable to fail on the ground of noncompliance of Section 685 of the Hyderabad Municipal Corporations act. On this ground alone, the Second Appeal is dismissed. I need not express any opinion on the merits of the suit. 5. It is obvious that it shall be open to the plaintiff to institute a fresh suit. If he is no advised after complying with the provisions of section 685 of the Act. The Second Appeal is accordingly dismissed but in the circumstances without costs".

( 6 ) JN Certificate Officer vs. Kasluri Chand the Orissa Court was concerned with Section 18 of the C. P. C. and therefore while dealing with section 18 as well as Order 23, Rule 1, it has held as follows: the other defences taken in the suit may not be necessary to be indicated and it may be sufficient to state that one of the defences was want of notice under Section 80 C P. C. ID paragraph 13 of the plaint it was stated :"the notice under Section 80, Civil P. C. is not necessary as the public officers concerned have been informed of the several illegalities and irregularities etc, and were approached with prayers not to perform the sale. As the sale is proceeding on 25-8-1963 and no time is left to protect the plaintiff s rights the public officers cannot claim the statutory period of two months:. . . . ". In paragraph 3 of the written statement by the two public officers it was contended :"the plaintiff, before the institution of the suit has not served on the defendants the notice as required under Section 80, C. P. C. and the contention advanced in para 13 of the plaint that such notice is not necessary is untenable. The suit instituted without such notice is not maintainable in law". Issue No. 2 was framed in the suit to the following effect: , "is the suit instituted without notice under Section 80, C. P. C. and not maintainable?" 5. The question as to the requirement to notice under Section 80, c. P. C. as a condition precedent to suits which are covered by that section came up for consideration before the Supreme Court in Sawal Singhai vs. Union of India Chief Justice Gajendragadkar, speaking on behalf of the Court, stated :"it is significant that in a large majority of cases, the plea that the govenment raises is that notice is necessary and it is generally contended that the notice being defective in one particular or another makes the suit incompetent and in dealing with such pleas, the courts have naturally sought to interpret the notices some-what liberally and have sometimes observed that in enforcing the provisions of Section 80, commonsense and sense of propriety should determine the issue. It is very unusual for the Government to contend that in a suit brought against it, no notice is required under Section 80. It is plain that such a plea has been raised by the respondent in the present case, because it helps the respondent to defeat the appellant s claim on the ground of limitation. In any case, the contention based on the object or purpose of the notice can hardly assist us in interpreting the plain words of Section 80. It will be recalled. that prior to the decision of the Privy Council in Bhagchand Dagadusa vs. Secretary of State 54 Ind. App. 338 there was a sharp difference of opinion among the Indian High Courts on the question as to whether Section 80 applied to suits where injunction was claimed. The Privy Council held that. Section 80 applied to all forms of suit aud whatever the relief sought, including a suit for an injunction. In dealing with the question about the construction of Section 80, the Privy Coun?il took notice of the fact that some of the decisions which attempted to exclude from the purview of Section 80 suits for injunction were influenced by the assumption as to the practical objects with which it was trained. They also preceded on the basis that Section 80 was a rule of procedure and that any construction which may lead to injustice is one which ought not to be adopted, since it svould be repugnant to the notion of justice. Having noticed these grounds on which an attempt was judicially made to e. xccpt from the puiview of Section 80 suits, for instance, in which injunction was claimed, Viscount Summer, who spoke for the Privy Council, observed that the Act albeit a Procedure code, must be read in accordance with the natural meaning of its words and he added that section 80 is express, explicit and mandatory, and it admits of no implications or exceptions". "even after the aforesaid decision of the Judicial Committee some. High Courts, took the view that notice for a case for injunction under Section 80 C. P. C. may not be necessary. One such instance is the case reported in AIR 1960 Patna 530 on which the trial court placed reliance. 6. The Supreme Court decision referred to above was not known by the time when the Second Appeal was tiled. As it now transpires, notice under Section 80 C. P. C. is necessary, condition precedent and the present suit cannot be maintainable. In consideration of the view I have taken Mr. Roy prays that he may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. I think want of notice is a technical defect and the prayer of mr. Roy should be allowed. I would therefore, vacate the judgments of both the courts below and give leave to the plaintiff to file a fresh suit on the same cause of action. This would however be on payment of a consolidated cost of Rs. 100/ (one hundred) to the Stale on payment of which alone a fresh suit can be tiled. Order accordingly".

( 7 ) IN M/s Konkan Trading Company vs. Suresh the Supreme Court held as follows:"we have heard the learned Counsel for the parties. Parties have cited befcre us a number of decisions Gollapudi Seshayya vs. Nadendla Subbaiaht Shidramappa Mutappa Biradar vs. Mallappa ramachandrappa Biradar, Kamakrishna Timmappa Shetti vs. Hanumant Patgavi, mast Ramram Charan vs. Dy. Commr, Buhraich, Binod Naik vs. Chandrasekhar Padhi, Chikkahanuma vs. Smt. Venkatamnra, and Raja Traders vs. Union of India. We have carefully considered all the above decisions. Sub-rule (3) of Rule 1 of Order XXIII of the Code of Civil Procedure, 1908 provides that where a Court is satisfied that suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such or such part of the claim. While granting such permission, it is therefore open to a court to direct the plaintiff to pay the costs of the defendants. Even if the order for costs in a given case is construed as directing payment of costs, as a condition precedent for filing a fresh suit, the defect if any, may be cured by depositing in Court or paying to the defendants concerned the costs within a reasonable time to be fixed by the Court before which the second suit is filed. If the plaintiff fails to comply with the said direction, then it will be open to the Court to reject the plaint, but if the amount of costs is paid within the time fixed or extended by the Court the suit should be deemed to have been instituted validly on the date on which it was presented. This view appears to be in consonance with jutti?c whatever may have been the view expressed on the subject by the various High Court so far. It does not militate against any express provision of law but on the other hand it advances the cause of justice. This view is also in accord with the spirit behind Section 148 of the C. P. C 1908. Ali contrary views expressed by the various High Courts, therefore, stand overruled".

( 8 ) THE case laws relied on by the respondents are in P. Gotilingam vs. State of Andhra Pradesh a learned Single Judge of the Court held as follows:"it is conceded before me that the plaintiff has not complied with the requirements of notice as enacted under Section 80 C. P. C. It is also conceded that it is fatal to the institution of the suit. 5. The law is settled on this question thus : "section 80 C. P. C. is express, explicit and mandatory and it admits of no implications or exceptions". Vide Bhagchand vs. Secretary of State. 6. In the present case, the non-compliance consisted in the suit having been instituted before the expiration of two months next after notice in writing had been delivered to the respondent. This would lead us on the question as to the action to he taken in respect of such a suit which is instituted. 7. The Privy Council in the aforecited case has observed thus at page 185: "the consequence is that the appellant s present position in regard to the taxes imposed on them is as if their action had never been brought. It was unsustainable in limine They commenced their suit before the law allowed them to sue and can get no relief in it either by declaration or otherwise". 8. These observations admit of no ambiguity that a suit, which was instituted without proper compliance of the requirements of notice as enacted under Section 80 C. P. C. was unsustainable and as such a suit must be deemed to have not been instituted at ail. 9. The question of application of Order XXIII C. P. C. to such a suit cannot, therefore, be acceded to. That provision must necessarily relate to properly instituted suit and a formal defect occurring therein. 10. It would therefore appear that the plaint in such a suit should have been rejected under Order VII R. 11 C. P. C. "

( 9 ) IN Rahmath Bi vs. State Wakf Board it was held as follows :"the Court cannot make exceptions or qualifications to the explicit terms of Section 56 on account of consideration of hardship and absence of prejudice or detriment. A defect, as" in the present case, cannot be equated to a formal defect contemplated by Order 23, rule 1 (3)C. P. C. It is a radical defect going to the root of the claim of the plaintiff (petitioner ). Section 56 is express, explicit, mandatory and admits of no exceptions. Therefore, the issue of a notice under Section 56 is a condition precedent to the institution of the suit itself Cases where suits have been instituted without the issue of a notice in accordance with Section 56 as in the instant case, are cases which clearly fall under Order 7. Rule 11 (d) C. P. C. "

( 10 ) A Division Bench of this Court in seetharamayya vs. Mahalakshmamma held as follows :"these suits were to restrain by injunction the commission of seme official act prejudicial to the plaintiff It was held that if the immediate result of the act would be to inflict irremediable harm, section 80 does not compel the plaintiff to wait for two months before bringing the suit, though if nothing to be apprehended beyond what payment of damages would compensate, the rule is otherwise and the section applies. Section 447 of the Hyderabad Corporation Act is substantially the samc as Section 80 of the C. P. C. Nothing has been urged to prevent us from interpreting the former section as bas been done by the Privy Council in the Bhagchand s case. 4. Before we conclude, we may point out that the Learned additional First Judge ought not to have dismissed the suit but rejected the plaint. 5. In the result, the appeal fails. The plaint however would stand rejected".

( 11 ) IN the light of the above perspectives, three principles do emerge, viz, (1) it is not necessary that permission should be granted for the withdrawal of the suit for the reason of some formal defect before filing a fresh suit, (2) in cases where because of certain technical formal defect, the suit is not maintainable, it is not a suit fhat has to be dismissed but the plaint which bas to be rejected and (3) where permission is sought by the plaintiff for the withdrawal of the suit because of some formal defects in the filing of the suit, the same can be allowed to be withdrawn provided the court is satisfied that the suit must fail by reason of some formal defect or that there sue sufficient grounds for allowing the plaintif to institute a fresh suit for the subject matter of the suit or part of the claim. In such a case the court may, if it thinks fit grnnt the plaintiff permission to withdraw such a suit or such part of the plaint with liberty to institute a fresh suit.

( 12 ) IN this case, though by the time the I. A. was filed under Order 23, Rule 1, the second suit O. S. 2404/88 was already filed in the Court of the IInd Asst. Judge, City Civil Court. Hyderabad. Order 23, Rule 1 (3) reads : rule 1 : Withdrawal of suit or abandonment of part of claim : (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: provided that where the plaintiff is minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extended, neither the suit nor any part of the claim shall be abandoned without Ihe leave of the Court (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied, (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-nutter of a suit or part of a claim. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute afresh suit in respect of the subjectmatter of such suit or such pail of the claim.

( 13 ) IT is quite evident from the provision enacted in Older 23 Rule 1 (3) ar. d also by virtue of the decision of the Supreme Court in M/s. Konkan trading Company vs. Suresh that it would certainly be open to the Court, if it is satisfied that a suit must fail by reason of some formal defect, on such terms as it thinks fit, to grant the plaintiff permission to withdraw such a suit. The words "formal" technical" or even "fatal" have been employed in various decisions denoting that in case of such defects if the suit fails ,if permission for withdrawal of the suit is sought for, then it may be granted. Hence there i* nothing magic about the words used as fatal in contra distinction to formal because this word "formal has been expressly used in sub- rule (3) (a) of F. 1 of Or. 23 C. P. C. In other words, if the formal defect is going to fail the suit, then it is just the same if the defect is styled as fatal . because that would equally cause fatal to the suit. Hence the end result is just the same. If that be so whenever permission is sought for withdrawal of a suit, if the Court is satisfied that a suit must fail because of certain formal defect, then permission may be granted. In this case, admittedly a notice under sec. 685 of the Corporation Act was not given which would be fatal to the suit itsetf and therefore the suit will fail. Hence permission which is sought for could be granted and depending upon the circumstances of each case that may be granted on certiin terms. Secondly, whenever there is a technical or formal defect in the suit by reason of which the suit must fail, then what all the court will do is to reject the plaint and not dismiss the suit. In this case, there is a third aspect Already a fresh suit was instituted for the same cause of action and in respect of the same subject matter. The question is whether it would cause any obstruction in seeking permission for the withdrawal of the earlier suit. The Kerala High Court has heen explicit in this matter and I am also of the same view that merely because a fresh suit has been instituted, it cannot be a ground for not according permission to withdraw the earlier suit. Secondly, where a suit is allowed to be withdrawn, it should be recorded as having never to be brought.

( 14 ) IN view of the above, it is quite clear that permission sought for withdrawal of the suit could be accorded and so it is granted. In this case certain terms ought to be imposed for the reason that the petitioner herein under the interim orders derived certain benefits and made certain facilities to the structure and therefore I grant permission for withdrawal of the suit on condition that the petitioner pays a sum Rs. 1,000/to the second respondent within two weeks from to-day.

( 15 ) C. R. P. is accordingly allowed. No costs.