IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL th ON THE 17 OF DECEMBER, 2024 CIVIL REVISION No. 97 of 2023 GAYA BAI AND OTHERS Versus SMT. ANITA AND OTHERS Appearance:

Shri Pushpendra Dubey - Advocate for petitioners.

None for respondents 1 to 12, though served/represented.

ORDER This civil revision has been preferred by the petitioners/defendants 1 to

5 challenging the order dtd.19.12.2022 passed by First Civil Judge Junior Division, Multai, District Betul in civil suit No.281/2006, whereby trial Court by allowing respondents/plaintiffs' application under Order XXIII Rule 1 CPC, permitted the plaintiffs to withdraw the suit with liberty to file fresh suit instituted on 12.11.2003.

2. Learned counsel for the petitioners submits that in first round the suit in question was dismissed and upon filing appeal by the plaintiffs, first appellate Court remanded the matter to trial Court for deciding the suit afresh and after remand the plaintiffs moved an application under Order VI Rule 17 CPC, which was dismissed by trial Court vide order dtd.14.12.2022 and thereafter at the stage of final arguments/decision the plaintiffs moved an application under Order XXIII Rule 1 CPC for withdrawal of suit with liberty to file fresh suit and trial Court without taking into consideration the Signature Not Verified provisions under Order XXIII Rule 1 CPC as well as without recording satisfaction about the valid reasons for withdrawal of suit, allowed the application and permitted the plaintiffs to withdraw the suit with liberty to file fresh suit.

3. Learned counsel submits that neither the plaintiffs have mentioned in the application that there is some formal defect or any other sufficient ground for permitting the plaintiffs to institute a fresh suit, nor the Court has recorded any satisfaction about the aforesaid and by passing an unreasoned and non-speaking order, has allowed the application. In support of his submissions learned counsel for the petitioners placed reliance on a decision given by Hon'ble Supreme Court in the case of V. Rajendran and Another vs. Annasamy Pandian (Dead) Thr. LRs. Karthyayani Natchiar, (2017) 5 SCC

63. With these submissions, he prays for allowing the civil revision.

4 . Despite service of notice and despite representation, none is appearing for respondents 1 to 12/plaintiffs.

5. Heard learned counsel for the petitioners and perused the record.

6. Apparently, the suit was filed on 12.11.2003 and in the first round it was dismissed on merits and upon filing appeal by the plaintiffs, the matter was remanded to trial Court for decision afresh and when the case reached at the stage of final arguments, one application under Order VI Rule 17 CPC dtd.13.12.2022 was filed, which upon due consideration was dismissed by trial Court vide order dtd.14.12.2022. Apparently, instead of challenging the order dtd.14.12.2022 before the higher Court, the plaintiffs moved an application under Order XXIII Rule 1 CPC without mentioning any Signature Not Verified sufficient ground and formal defect, if any, in the suit, which was opposed by defendants/petitioners. However trial Court by the impugned order has allowed the application on the premise that the plaintiffs sought amendment in the plaint and if the plaintiffs pray such amendment, then the plaint would be amended and the plaintiffs have to pay necessary court fee and if in such circumstances the suit is decided on merits, it would fail and the real dispute in between the parties would not be decided.

7. In view of the aforesaid it is clear that trial Court without taking into consideration the provisions contained in Order XXIII Rule 1(4) CPC has allowed the application and permitted the plaintiffs to withdraw the suit with liberty to file afresh.

8 . Apparently, the order passed by trial Court is non-speaking, unreasoned and is not in conformity with the said provision, resultantly, the same is hereby set aside and as no one is appearing o