Failure to make necessary pleadings and file relevant documents, where the trial has not yet commenced (cross-examination not begun), constitutes "sufficient grounds" under Order 23 Rule 1(3)(b) of the CPC to allow withdrawal of a suit with liberty to institute a fresh suit.

1. This Revision under Section 115 of the Code of Civil Procedure has been preferred by the applicant/plaintiff against the 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 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