A court without jurisdiction cannot permit withdrawal of a suit under Order 23 Rule 1 of the Code of Civil Procedure; such withdrawal must be regarded as an order returning of plaint under Order 7 Rule 10 of the Code of Civil Procedure.

N.K. Agarwal, J.

1. Legality and propriety of the order dated 23.12.2010, passed by Civil Judge Class-Il, Patan, Distt. Durg, in Civil Suit No. 9-A/2010, whereby the applicant's application filed under Order 7 Rule 11(D) read with Section 151 of Code of Civil Procedure has been dismissed, is under assail in the instant petition.

2. According to the applicant, earlier Civil Suit was filed by the Respondent No. 1 in the court of Civil Judge, Class II, Durg. The applicant herein objected that the suit property is situated in village Urla, Teh. Patan, therefore, Durg Civil Court has no jurisdiction to hear the matter. An application under Order 23 Rule 1 of Code of Civil Procedure was filed by the Respondent for withdrawal of the suit on the ground that the Durg Civil Court has no jurisdiction to try the suit and only Patan Civil Court has jurisdiction to try the suit. The court permitted him for withdrawal of the suit on the ground that since the property in dispute is situated in village Urla, Teh. Patan, therefore Civil Court, Patan has jurisdiction to hear the suit, and thereafter, the instant suit has been filed by the Respondent before the Patan Civil Court. The applicant appeared in the case and an objection has been raised again by filing application under Order 7 Rule 11 of Code of Civil Procedure on the ground that suit has been withdrawn by the Plaintiff without permission of the trial court, granting liberty to institute a fresh suit, and therefore, the instant suit is not maintainable. It was further contended that the number of Defendants are different in both the suits.

3. Having heard the counsel appearing for the parties and having perused the order impugned, I do not find and substance in the revision,

4. A bare perusal of the order passed by the Ilnd Civil Judge, Class I II, Durg, would reveal, having found, the court has no jurisdiction to try the suit, permitted the Plaintiffs for withdrawal of the suit. A court which has no jurisdiction in respect of a suit cannot permit its withdrawal under Order 23 Rule 1 of Code of Civil Procedure. Such withdrawal must be regarded as an order returning of plaint under Order 7 Rule 10 of Code of Civil Procedure.

5. For the reasons mentioned hereinabove, the revision fails and is accordingly dismissed. No order as to costs.