Permission to withdraw a suit under Order 23, Rule 1, CPC should be granted only if proper grounds exist and it will not prejudice the Defendant.

JUDGMENT :

Sanju Panda, J. - This is an application under Article 227 of the Constitution of India challenging the order dated 26.3.2006 passed by the learned Civil Judge (Junior Division), Bhubaneswar in Title Suit No. 209 of 2004 allowing the application filed by the Plaintiff under Order 23, Rule 1 of the CPC to withdraw the suit and permitting her to file a fresh suit.

2. The facts leading to the case are as follows:

Opposite party No. 1 being the Plaintiff filed Title Suit No. 209 of 2004 before the learned Civil Judge (Junior Division), Bhubanewar for declaration that suit Plot No. 1122 may be declared as public road, to set aside the order passed by the Consolidation Authority as well as the Settlement Authority as illegal and for impleading the present Petitioners as Defendant Nos. 1 and 2, State as Defendant No. 4, along with the Consolidation and Settlement Authority as other Defendants. In the said suit, the Defendants appeared and filed their written statement. In course of the trial, the Plaintiff as well as Defendants led evidence from their respective sides. While the matter stood thus, the Plaintiff filed an application under Order 23, Rule 1, CPC (vide Annexure-1) for withdrawal of the suit with liberty to file afresh suit without explaining what prejudice was caused to her and what was the technical lacunae which required her to withdraw the suit after 12 years of its filing. The present Petitioners filed their objection to the said application (vide Annexure-2). The case was taken up before the Loak Adalat. The court below without considering the objection of the Petitioners only held that "the Plaintiff does not want to proceed with this suit due to filing of fresh suit" and allowed the application under Order 23, Rules 1 and 2, CPC subject to payment of cost of Rs. 100/-. The suit was permitted to be withdrawn and leave granted to the Plaintiff to file a fresh suit.

3. Learned Counsel for the Petitioners submitted that an application under Order 23, Rule 1, CPC is to be considered with caution and circumspection as it contains the mandate of the court to institute a fresh suit for the same claim or part of the claim on the same cause of action. Therefore, the person, who wants to get that -mandate, must satisfy the court about the sufficiency of the reasons for such mandate to institute a fresh suit. Here, the Plaintiff has not given any reason whatsoever in the application under Order 23 Rule 1, CPC and without assigning any reason, the court below should not have allowed the application for withdrawal of the suit. As the order was passed in the Lok Adalat, the Petitioners having no other alternative efficacious remedy for redressal of their grievance, have invoked the jurisdiction of this Court under Article 227 of the Constitution of India.

4. In support of his contention, he cited a decision reported in Sitaram ' Mahendra Ghosh and Others Vs. Sri Antaryami Mohapatra and Others and Others, wherein this Court discussed the scope of Section 115 of the CPC after the Amendment Act No. 46 of 1999.

5. There is no dispute that after the amendment came into force in July, 2002. The scope of a revision u/s 115 of the CPC is limited and to invoke the jurisdiction u/s 115 of the CPC the Petitioner has to satisfy that by the impugned order the case is decided finally. Even if the impugned order comes within the category of case decided, he has to further satisfy that if the impugned order would not have been passed in his favour then "the suit or other proceeding" would have stood disposed of finally.

6. In the present case, had the Petitioners' objection been allowed, the suit would not have come to an end. Rather, the Plaintiff would have continued the suit. As the permission sought by the Plaintiff to withdraw the suit was allowed by the trial court, the Petitioners are not entitled to invoke the jurisdiction under Article 227 of the Constitution of India is the only remedy.

7. This Court perused the application under O