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CR no.37/2019

CM no.6941/2019

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…

CR no.37/2019

CM no.6941/2019

Abdul Majid Rather and another

…….Petitioner(s)

Through: Mr M.Y. Bhat, Sr. Advocate

with Mr Faizan, Advocate

Versus

Khalida Salman

……Respondent(s)

Through: Mr W.M.Shah, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

ORDER

05.05.2022

1. This Civil Revision Petition is preferred against Order dated 27^th July

2019, passed by City Munsiff, Srinagar (for brevity “Trial Court”) in a

suit titled Khalida Salman v. Abdul Majeed Rather and another,

permitting its withdrawal with liberty, and for setting aside the same.

2. I have heard learned counsel for parties and considered the matter.

3. A civil suit titled Khalida Salman v. Abdul Majeed Rather and another,

was filed by respondent herein before the Trial Court for eviction of

petitioners from the suit shop and handing over the same to plaintiff/

respondent. Written statement was filed by petitioners/defendants.

Respondent moved an application before the Trial Court to withdraw

the suit with permission to file a fresh one. Application was allowed

vide order dated 8^th November 2017. Against said order, a civil

revision, being C.Rev no.49/2017 was filed by present petitioners. A

S.no. 05

Cause List

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Bench of this Court vide order dated 29^th March 2018, allowed the civil

revision petition and quashed order dated 29^th March 2018. The Trial

Court was directed to consider the application in terms of Order 23 Rule

3 CPC preferred by respondent afresh by bearing into mind the statutory

mandate as contained therein.

4. The Trial Court vide order impugned dated 27^th July 2019 has permitted

withdrawal of suit with liberty to file a fresh one. It is this order of

which petitioners are aggrieved and seek setting-aside thereof.

5. According to learned counsel for petitioners, in terms of Order 23 Rule

1 CPC, plaintiff is entitled to unconditionally withdraw the suit at her

own will, but when liberty to file a fresh is sought, the Court is bound

to examine as to whether suit has any formal defect and only in such

cases liberty is to be given. It is contended that Trial Court has decided

application without recording any satisfaction as regards fulfillment of

requirement of defect being a formal defect within the parameters of

Order 23 Rule 1 CPC.

6. The provisions of Order 23 Rule 1 provides that at any time after, the

institution of a suit, the plaintiff may as against all or any of the

defendants abandon his suit or abandon a part of his claim. Where the

Court is satisfied that a suit must fail by reason of some formal defect

or 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, the Court

may, on such terms as it thinks fit, permit plaintiff 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.

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7. As is evident from above, earlier this Court vide order 29^th March 2018

in C.Rev no.49/2017, set-aside order dated 8^th November 2017 passed

by the Trial Court. It was observed that when a suit must fail by reason

of some formal defect or that there were sufficient grounds for allowing

plaintiff to institute a fresh suit for the subject matter of a suit or part of

a claim then the trial court may permit plaintiff to withdraw the suit.

However, before allowing such application by trial court, Order 23 Rule

1 CPC was required to be fulfilled. It has been also observed and said

by this Court that trial court had not recorded its satisfaction with regard

to fulfillment of the conditions as envisaged under Order 23 Rule 1

CPC, and accordingly the Trial Court