A plaintiff seeking withdrawal of a suit under Order 23 Rule 1 (3) CPC must demonstrate sufficient grounds, considering factors like the germaneness of the grounds, progress of the suit, prejudice to defendants, and other relevant factors. The possibility of failure to prove the case is not a sufficient ground for withdrawal.

Dipak Misra, J.

1. Invoking the civil revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (in short 'the CPC) the plaintiffs-petitioners have assailed the order dated 25-3-96 passed by the Civil Judge, Class-I, Begamgunj in Civil Suit No. 1 -A/94 whereby he has dismissed the application of the present petitioners under Order 23 Rule 1 (3) of the CPC seeking withdrawal of the suit with a liberty to institute a fresh suit.

2. The facts in a nutshell are that the petitioners instituted the aforesaid suit against the defendants for permanent injunction restraining them from raising construction of the road over the suit land. According to the plaintiffs they are the owners in possession of the suit land which is a part of the Khasra Nos. 6 and 7 and the defendants have no manner of right, title or interest in the land in question.

3. The defendants resisted the claim of the plaintiffs contending, inter alia, that the suit land is not a part of Khasra Nos. 6 and 7 but is a part of Khasra Nos. 4.5/1 and 4.5/2 which belongs to them as the same has been gifted to them by the actual owner on 14-12-90. It has been putforth in the revision petition that to ascertain whether the suit land in the part of Khasra Nos. 4.5/1 and 4.5/2 as sledged by the defendants, plaintiffs-petitioners filed an application before the revenue authorities for demarcation of the boundaries of the suit land. The demarcation though has been done, is not in accordance with the field situation as boundaries of Khasra Nos. 6 and 7 have not been kept in view. The plaintiffs have raised an objection before the revenue authorities. It is also setforth that the plaintiffs also filed an application before the trial Court under Order 26 Rule 10 of the CPC for demarcation of the suit land by appointing a Commissiner. When the matter stood thus, the plaintiffs filed an application under Order 23 Rule 1 (3) of the CPC for withdrawal of the suit with permission to file a fresh suit after getting the demarcation done correctly as per the field situation. The aforesaid application was resisted by the contesting defendants and after hearing the parties the learned trial Court dismissed the application of the plaintiffs on the ground that the said suit was linked up with another suit wherein some of the defendants were not parties and the trial of that suit has progressed substantially and hence the prayer for withdrawal of the suit with liberty to file a fresh suit was devoid of substance. The said order is the cause of grievance of the present revisionists.

4. Assailing the impugned order it is submitted by Mr. Dinesh Kaushal, learned counsel for the petitioners that the trial Court has erred in law in refusing to grant leave to withdraw the suit on the ground that the defendants No. 3 and 4 are not parties to the suit and the same is connected with another suit. It is his further submission that the order of rejection clearly demonstrates that the Court below has refused to exercise the jurisdiction which is vested in him and that warrants interference by this Court in exercise of revisional jurisdiction.

Combating the aforesaid submission of the learned counsel for the petitioners, Mr. Pramod Verma, learned counsel for the respondents has contended that there has been substantial progress in the suit No. 31 A/93 which has been linked up with the present suit; the grounds putforth for withdrawal of the suit are not germane and do not satisfy requirement of the provision and, therefore, the learned trial Judge has rightly dismissed the application.

5. This Court, to appreciate the entire scenario, had passed an order on 2-9-97 requiring the learned counsel for the petitioners to obtain instructions as to whether the evidence of the plaintiffs in the present suit as well as in Civil suit No. 31 -A/93 has been recorded and the case has been closed or not. On further consideration by order dated 8-9-97 the records of both the suits were called for