AFR HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 616 of 2024 Reena Kakade W/o Shri Pitambar Kakade Aged About 40 Years R/o 13/7 Nehru Nagar West, Bhilai, P.S. Supela, Bhilai, Tah. And Dist.- Durg, C.G.

--- Petitioner.

Versus Arun Shrivastava @ Raju S/o Late Shri V.B.L. Shrivastava Aged About 43 Years R/o L.I.G.-229 Padmnabhpur, Dist.- Durg, C.G.

--- Respondent.

(Cause title downloaded from CIS periphery)

For Petitioner : Mr. Ravindra Sharma, Advocate.

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

Order On Board

25.07.2024

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:-

9. Order 23 Rule 1(3) CPC lays down the following grounds on which a Court may allow withdrawal of suit.

It reads as under:

R.1. Withdrawal of suit or abandonment of part of claim.

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(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 fr