A plaintiff's right to withdraw a suit is conditional on the existence of formal defects or sufficient grounds, not absolute, and requires court approval to balance both parties' rights.

ORDER :

Deepak Kumar Tiwari, J.

1. This Civil Revision is directed against the order dated 5.10.2023 passed by the 3^rd Civil Judge, Class-II, Ambikapur in Civil Suit No.130-A/2018 whereby the application preferred by the petitioner/plaintiff under Order 23 Rule 1 of the CPC for withdrawal of the suit with liberty to institute a fresh suit has been rejected.

2. Facts of the case are that the petitioner/plaintiff has instituted a civil suit on 23.6.2018 for declaration of title and permanent injunction of the land situated at village Chhindkalo, Tehsil Darima, District Ambikapur for 18 Khasra numbers, total area 14.53 acre. During the pendency of the suit, defendant No.1 – Rajmaniya, wife of Geda, died. Respondent No.1/defendant filed the written statement. Issue have been settled and the case was fixed for evidence. However, during the course of evidence of the plaintiff, certain necessary averments could not be made in the plaint and certain documents which were necessary were also not filed. In these circumstances, the subject application was moved. The defendant raised an objection and by the impugned order, the said application was rejected.

3. Learned counsel for the petitioner would submit that the impugned order is not sustainable and is against the spirit of Order 23 Rule 1 (3) of the CPC. The trial Court has wrongly relied upon the judgment of the Hon’ble Supreme Court in the matter of K.S. Bhoopathy & Others Vs. Kokila & Others, (2000) 5 SCC 458 , inasmuch as in the said matter, the case was reached to the Second Appellate Stage and on that stage, the High Court had allowed the application filed under Order 23 Rule 1 (3) of the CPC, whereas in the present case, the defendant’s evidence did not commence. Learned counsel for the petitioner would further place reliance on the order passed by the M.P. High Court in the matter of Trilochansingh Vs. Indrajeet Kaur , CR No.60/2020, decided on 21.12.2022. In the said matter, taking into consideration the grounds that failure to make necessary pleadings in the plaint and not filing the relevant documents along with the plaint and not making the pleadings in respect of the documents filed along with the plaint, the High Court has allowed the application filed under Order 23 Rule 1 (3) of the CPC filed by the plaintiff and the plaintiff was permitted to institute a fresh suit with liberty as sought for by him. Therefore, the impugned order may be set aside and the Revision may be allowed.

4. On the other hand, learned counsel for respondent No.1/defendant would support the impugned order.

5. Heard learned counsel for the parties and perused the documents annexed with the Revision with utmost circumspection.

6. It is well settled that when the plaintiff files an application for simple withdrawal of the suit under sub-rule (1) of Order 23, he does so as a matter of right and the defendant cannot compel the plaintiff to prosecute the suit. The defendant can merely ask the Court to impose cost upon the plaintiff. However, the defendant has all the rights to object to an application made by the plaintiff under sub-rule (3) and the Court shall decide whether or not the application should be allowed on its own merit. Order 23 Rule 1 (3) of the CPC lays down the following grounds on which a Court may allow withdrawal of the suit. The said provision reads as under:-

“(1) xxxx xxxx xxxx

(2) xxxx xxxx xxxx

(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.”

7. Reading of the aforesaid provision would make it clear that the suit may only be withdrawn with permission to bring a fresh su