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IN THE HIGH COURT OF MADHYA PRADESH
Pranay Verma, J.
Trilochan Singh v. Indrajeet Kaur
Civil Revision No. 60 of 2020 (Indore): against the order dated 23.1.2020 passed in Civil Suit No. 88-A/2015 by VI Civil Judge, Class-I, District Dewas; Decided on 21.12.2022.
flfoy çfØ;k lafgrk] 1908 && vk- 23 fu- 1 ¼3½ ¼[k½ && okn dk çR;kgj.k && oknh }kjk mUgÈ rF;¨a ,oa okn gsrqd ij u;k okn lafLFkr djus dh Lora=rk d¢ lkFk okn çR;kgj.k d¢ fy, vkosnu çLrqr && fopkj.k U;k;ky; }kjk [kkfjt && d¢oy oknh rFkk mlds lkf{k;¨a d¢ 'kiFki= çLrqr && mudh çfrijh{kk çkjaÒ ugÈ gqbZ && okn dk okLrfod fopkj.k çkjaÒ ugÈ gqvk && çfroknh d¢ i{k esa d¨Ã vfèkdkj l`ftr ugÈ && oknh }kjk vius vkosnu esa fn, x, dkj.k i;kZIr vkèkkj gSa && vkosnu eatwj && u;k okn çLrqr djus dh Lora=rk çnku dh xÃA
fopkj.kh; ç'u ;g gS fd D;k oknh }kjk vius vkosnu esa fy, x, vkèkkj] vFkkZr~ okni= esa vko';d vfÒopu ugha dj ikuk rFkk mld¢ lkFk lqlaxr nLrkost çLrqr ugha fd, tkuk rFkk okni= d¢ lkFk çLrqr nLrkost¨a d¢ fo"k; esa vfÒopu ugha fd, tkuk] mls orZeku okn dh fo"k;oLrq d¢ fy, u;k okn lafLFkr djus dh Lora=rk d¢ lkFk okn çR;kgj.k dh vuqKk fn, tkus d¢ fy, i;kZIr vkèkkj dgs tk ldrs gSa\ ¼iSjk 7
vfÒfuèkkZfjr% ;|fi okn o"kZ 2016 esa lafLFkr fd;k x;k Fkk ijarq orZeku esa lk{; esa d¢oy oknh v©j mld¢ lkf{k;¨a d¢ 'kiFki= çLrqr fd, x, gSa rFkk mudh çfrijh{kk çkjaÒ ugÈ gqbZ gSA bl çdkj] okn dk okLrfod fopkj.k çkjaÒ ugÈ gqvk gS rFkk çfroknh d¢ i{k esa ,slk d¨Ã vfèkdkj l`ftr ugÈ gqvk gS t¨ oknh }kjk çR;kâr fd;k tk ld¢A dk;Zokgh ,sls çØe ij ugÈ igq¡ph gS tgk¡ ;g dgk tk ld¢ fd okn d¢ çR;kgj.k ls çfroknh d¢ vfèkdkj¨a ij çfrdwy çÒko iM+sxkA oknh vius vfÒ;¨tu ds çfr ykijokg g¨ ldrk gS ijarq og ykijokgh mlds vfÒopu¨a rFkk nLrkost çLrqr djus d¢ fo"k; esa FkhA ¼iSjk 8
bl çdkj] esjh jk; esa] oknh }kjk u;k okn lafLFkr djus dh Lora=rk d¢ lkFk okn çR;kgj.k d¢ fy, fn, x, dkj.kksa ls lh-ih- lh- d¢ vkns'k 23 fu;e 1 ¼3½ ¼[k½ esa vuqè;kr i;kZIr vkèkkj xfBr g¨axsA ¼2017½ 5 ,l lh lh 63 fufnZ"VA ¼iSjk 9
blfy, vk{ksfir vkns'k fLFkj ugÈ j[kk tk ldrk v©j ,rn~ }kjk vikLr fd;k tkrk gSA vr%] oknh }kjk vkns'k 23 fu;e 1 rFkk 3 ds v/khu çLrqr vkosnu eatwj fd;k tkrk gS rFkk mls mld¢ }kjk pkgh xà Lora=rk d¢ lkFk u;k okn lafLFkr djus dh vuqKk nh tkrh gSA ¼iSjk 10
Civil P.C., 1908 -- O. 23 R. 1 (3) (b) -- withdrawal of suit -- application filed by plaintiff for withdrawal of suit with liberty to institute fresh suit on same facts and cause of action -- dismissed by trial Court -- only affidavits of plaintiff and his witnesses filed -- their cross-examination not begun -- actual trial of suit not started -- no right created in favour of defendant -- reasons given by plaintiff in his application are sufficient grounds -- application allowed -- liberty granted to file fresh suit.
The question for consideration is as to whether the grounds taken by the plaintiff in his application, i.e., failure to make necessary pleadings in the plaint and not filing the relevant documents along with it and not making the pleadings in respect of the documents filed along with the plaint, can be said to be sufficient grounds for allowing him to withdraw the suit with liberty to institute a fresh suit for the subject matter of present suit. [Para 7
Held: Though the suit has been instituted in the year 2016 but presently only the affidavits in evidence of plaintiff and his witnesses have been filed and their cross-examination has not begun. Thus, the actual trial of the suit has not started and no right has been created in favour of the defendant which can be withdrawn by the plaintiff. The proceedings have not reached a stage where it can be said that withdrawal of the suit would have any prejudicial effect upon rights of the defendant. The plaintiff may have been negligent towards prosecution of his suit but the same was in respect of his pleadings and filing of documents. [Para 8
Thus, in my opinion, the reasons given by the plaintiff in his application for seeking leave to withdraw the suit with liberty to institute a fresh suit would constitute "sufficient grounds" as contemplated under Order 23 Rule 1 (3) (b) of the CPC. (2017) 5 SCC 63 referred to. [Para 9
The impugned order thus cannot be sustained and is hereby set aside. The application under Order 23 Rules 1 & 3 of the CPC filed by the plaintiff is hence allowed and he is permitted to institute a fresh suit with the liberty as sought for by him. [Para10
ORDER
1. This Revision under section 115 of the Code of Civil Procedure has been preferred by the applicant/plaintiff against the order dated 23.1.2022 passed in Civil Suit No.88-A/2015 by the VIth Civil Judge, Class-I, District Dewas whereby his application under Order 23 Rule 1 and 3 of the CPC for withdrawal of the suit with liberty to file a fresh suit has been rejected.
2. The facts of the case are that plaintiff instituted an action on or about 14.9.2015 against the defendant for declaration of his half share in the suit lands, for mandatory injunction directing the defendant to remove his construction from over his share in the suit land and for permanent injunction restraining the defendant from making any construction in the future or alienating the suit land in any manner. Upon service of summons upon her the defendant has contested the plaintiff's claim by filing her written statement on 21.6.2016.
3. During course of proceedings before the trial Court the plaintiff filed an application under Order 23 Rule 1 and 3 of the CPC for withdrawal of the suit with liberty to institute a fresh suit on the same facts and cause of action. The plaintiff submitted that only affidavits in evidence of witnesses have been filed and their cross-examination has not begun as yet and that pleadings in the plaint have not been made properly since plaintiff was not aware of the legal requirements hence could not give the entire information to his counsel at the time of filing of the suit. Certain relevant documents which throw a great deal of light on the dispute also could not be filed because plaintiff could not understand their relavance and importance. The pleadings as regards the documents filed along with the plaint have also not been made. For correcting the pleadings the plaintiff has made applications from time to time for amendment of the plaint which have been rejected. Certain documents filed subsequently by plaintiff have also not been taken on record. It was hence submitted that due to absence of necessary pleadings and the documents the suit is bound to fail hence plaintiff be permitted to withdraw the suit with liberty to institute a fresh suit on the same cause of action upon making the relevant pleadings and filing necessary documents. The defendant contested the application by filing reply to the same. The application has been rejected by the trial Court by observing that the grounds as have been taken by the plaintiff in the application are not sufficient for permitting withdrawal of the suit and granting liberty to him as prayed for.
4. Learned counsel for the plaintiff submits that the trial Court has committed a gross error of law in rejecting the application filed by the plaintiff. The plaintiff was not aware of the legal requirements and procedures and could not make necessary pleadings in the plaint at the time of its filing and also could not bring on record the documents relevant for the case. Though certain documents have been filed along with the plaint but pleadings in that regard have not been made. Subsequent applications filed by plaintiff for amendment of the plaint and for taking additional documents on record have been rejected. The suit is hence likely to fail on account of such absence of pledings and documents hence there was sufficient ground for allowing the plaintiff to withdraw the suit with liberty to institute a fresh suit as prayed for. Reliance has been placed by him on the decision of the Hon'ble Supreme Court in V. Rajendran and Another v. Annasamy Pandian (dead) through LRs Karthyayani Natchiar (2017) 5 SCC 63.
5. Per contra learned counsel for the defendant has submitted that the suit was instituted by the plaintiff in the year 2015. Since then several applications have been filed by him for amendment of the plaint and for taking documents on record. The case has been fixed since a long time for recording of evidence of plaintiff but he is avoiding to do so and is himself prolonging the mat
when all the necessary parties are not brought on record, the revision petitioner/plaintiff has got every right to make an application seeking the Court to permit him to add those parties as parties ....
Court has discretion to permit withdrawal of a suit under CPC, but must ensure sufficient grounds exist; mere counsel error does not qualify if it alters the suit's essence.
Withdrawal of a suit under Order 23 Rule 1 CPC requires either a formal defect or sufficient grounds for a fresh suit.
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....
A trial court must satisfy specific conditions under Order XXIII Rule 1(3) CPC before allowing a plaintiff to withdraw a suit and file a fresh one.
The court established that withdrawal of a suit under Order XXIII Rule 1 requires the court to be satisfied with the grounds for allowing a fresh suit on the same cause of action.
The court ruled that plaintiffs can withdraw a suit with permission to file a fresh suit if sufficient grounds for withdrawal exist, overriding trial court's error in denying such permission.
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