(PASSED ON 21/12/2022)

1.

This Revision under Section 115 of the Code of Civil

Procedure has been preferred by the applicant/plaintiff against the

Signed by: NEERAJ

SARVATE

Signing time: 26-12-2022

15:40:58

Signature Not Verified

2

order dated 23.01.2022 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 14.09.2015 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

21.06.2016.

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

Signed by: NEERAJ

SARVATE

Signing time: 26-12-2022

15:40:58

Signature Not Verified

3

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

Signed by: NEERAJ

SARVATE

Signing time: 26-12-2022

15:40:58

Signature Not Verified

4

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/s. 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