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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
DEEPAK KUMAR TIWARI, J.
Reena Kakade, W/o. Shri Pitambar Kakade - Petitioner
Versus
Arun Shrivastava @ Raju, S/o. Late Shri V.B.L. Shrivastava - Respondent
WP227 No. 616 of 2024
Decided On : 25-07-2024
(A) Code of Civil Procedure, 1908 - Order 23 Rule 1(3) - Withdrawal of suit - Plaintiff sought permission to withdraw suit for permanent injunction and declaration of Will as null and void, citing formal defect due to non-impleading of Municipal Corporation - Trial Court allowed withdrawal but denied liberty to file fresh suit - Court held that no sufficient reasons were provided for fresh suit, affirming discretion under Order 23 Rule 1(3). (Paras 2, 4, 5, 6, 7)
(B) Discretion of Court - The power to allow withdrawal of a suit is discretionary and must be exercised judiciously, ensuring that the rights of the defendant are not compromised. (Paras 10, 11)
Facts of the case:
The plaintiff filed a civil suit claiming ownership based on an unregistered sale deed and alleged fraudulent mutation of property title by the defendant. The trial Court partly allowed withdrawal of the suit but denied permission to file a fresh suit.
Findings of Court:
The Court found that the plaintiff did not establish a formal defect warranting withdrawal with liberty to file a fresh suit.
Issues: The main issue was whether the plaintiff had sufficient grounds for withdrawal of the suit and permission to file a fresh suit.
Ratio Decidendi: The court emphasized the necessity for the plaintiff to demonstrate a formal defect or sufficient grounds for withdrawal, highlighting the discretionary nature of such permissions.
Result: Writ petition dismissed.
Based on the provided legal document, the key points are as follows:
The court emphasized that the withdrawal of a suit under Order 23 Rule 1(3) of the Civil Procedure Code (CPC) requires the plaintiff to demonstrate a formal defect or sufficient grounds for withdrawal. The discretion to permit withdrawal is to be exercised judiciously, ensuring that the rights of the defendant are protected (!) (!) .
The power to allow a suit to be withdrawn with liberty to file a fresh suit is limited to cases where the court is satisfied that the suit must fail due to a formal defect or that there are sufficient grounds for the plaintiff to institute a new suit on the same subject matter (!) (!) .
In this case, the plaintiff sought permission to withdraw the suit on the grounds of a formal defect—specifically, the non-impleading of the Municipal Corporation—arguing that notice was not served upon the Municipal Corporation, which was mandatory. However, the trial court found that no sufficient reasons or formal defect warranting withdrawal with liberty to refile were established (!) (!) .
The court held that mutation entries or records of municipal authorities do not confer legal title or rights in property disputes, and the outcome of the suit would influence the municipal records. Therefore, the absence of formal defect was concluded (!) .
The appellate court reviewed the exercise of discretion by the trial court and found it to be proper and just, dismissing the writ petition and upholding the order allowing partial withdrawal but denying liberty to refile (!) (!) .
The court reiterated that the discretion to permit withdrawal must be exercised carefully, and in this case, the plaintiff did not sufficiently demonstrate a formal defect or sufficient grounds to justify filing a fresh suit (!) .
Consequently, the writ petition was dismissed, confirming that the order passed by the trial court was appropriate and did not warrant interference under the constitutional jurisdiction (!) (!) .
Overall, the judgment underscores the importance of demonstrating clear formal defects or sufficient grounds for suit withdrawal and affirms the court’s discretion in exercising this power judiciously.
ORDER :
(Deepak Kumar Tiwari, J.)
1. This petition has been filed against the order dated 03.07.2024 passed by the Eighth Additional District Judge, Durg in Civil Suit No.44-A/2021, whereby, the trial Court partly allowed the application preferred by the plaintiff under Order 23 Rule 1 (3)(b) of the CPC and granted permission to withdraw the suit, however, refused to grant liberty to file a fresh suit.
2. The plaintiff has filed the civil suit for permanent injunction and for declaration of Will dated 25.07.2024 to be null and void which was executed in favour of the defendant. It was averred by the plaintiff that she has entered into unregistered sale deed dated 22.11.2015 which was earlier recorded in the name of late Smt. Pushpa Shrivastava and on the basis of the said deed the plaintiff is in possession of the suit property. It was further averred that the concerned Municipal Corporation has mutated the name of defendant in place of plaintiff in a fraudulent manner, and therefore, the defendant is threatening her to dispossess from the house. The said issue gave rise to the civil suit. In the said suit, the plaintiff has preferred an application under Order 23 Rule 1 (3)(b) of the CPC on the ground that notice was required under Section 401 of the Municipal Corporation Act and the Municipal Corporation is necessary party in the suit, however, the same could not be impleaded as a party and on account of such formal defect the suit might be failed. However, the trial Court has partly allowed the prayer of the plaintiff for withdrawal of suit but declined to grant liberty to file fresh suit. Hence, this petition.
3. Learned counsel for the petitioner/plaintiff submits that the impugned order is bad in law. He submits that the plaintiff has only sought permission to withdraw the suit with liberty to file fresh suit as notice was not served upon Municipal Corporation which is mandatory as per relevant provision. He further submits that the defendant has fraudulently mutated the name of plaintiff in the record of the Municipal Corporation on the basis of forged Will. However, the trial Court has not exercised its discretion in proper manner and committed error while passing the impugned order. In support of his contention he placed reliance in the matter of V. Rajendran and another Vs. Annasamy Pandian (D) Thr. LRs. Karthyayani Natchiar [AIR 2017 Supreme Court 685].
4. In the matter of V. Rajendran (Supra), the Hon’ble Supreme Court has explained the scope and exercise of Order 23 Rule 1 (3) of the CPC. The relevant portion of the judgment reads thus:-
R.1. Withdrawal of suit or abandonment of part of claim. —
(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-matter 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 a fresh suit in respect of the subject-matter of such suit or such part of the claim.
As per Order 23 Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order 23 Rules 1(3)(a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order 23 Rule 1(3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b), that is, existence of a “formal defect” or “sufficient grounds”. The principle under Order 23 Rule 1
The court emphasized that withdrawal of a suit under Order 23 Rule 1(3) CPC requires the plaintiff to demonstrate a formal defect or sufficient grounds, with the discretion to allow such withdrawal b....
Permission to withdraw a suit with liberty to file a fresh suit requires sufficient grounds or a formal defect; mere change in circumstances does not suffice.
The petitioners can be permitted to withdraw the suit to file a fresh suit, and they are liable to satisfy the law of limitation while filing the fresh suit.
Withdrawal of a suit under Order 23 Rule 1 CPC requires either a formal defect or sufficient grounds for a fresh suit.
Court must ensure sufficient grounds exist for withdrawal of a suit before permitting re-filing under Order XXIII Rule 1(3) CPC, safeguarding the rights of defendants and judicial efficiency.
Point of law : Withdrawal of suit - Court while dealing with an application under Order 23 Rule 1 of CPC has to specifically state the formal defect entailing withdrawal of the suit in its order gran....
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