IN THE HIGH COURT OF ORISSA AT CUTTACK

CRP No.12 of 2023

G. Nageswar Rao

….

Petitioner

Mr. Dpiti Ranjan Bhokta, Advocate

-versus-

N. Jagannath Rao and others

….

Opp. Parties

CORAM:

JUSTICE A.K. MOHAPATRA

Order No.

ORDER

23.03.2023

02.

1.

This matter is taken up through Hybrid Arrangement

(Virtual /Physical Mode).

2.

Heard the learned counsel for the Petitioner.

3.

Perused the Civil Revision Petition as well as the impugned

order dated 07.02.2023 passed the learned Civil Judge, Senior

Division, Jeypore in C.S. No.225 of 2016.

4.

The present Civil Revision Petition has been preferred by the

Petitioner under Section 115 of the Code of Civil Procedure

challenging the rejection of his petition under Order 23, Rule-3(b)

of the C.P.C. which has been annexed as Annexure-4 to the Civil

Revision Petition.

5.

On perusal of the petition under Annexure-4, it appears that

Plaintiff has sought for permission to withdraw the suit on the

ground that the Plaint suffers from some formal defects and, as

such, the plaintiff intends to withdraw the current suit and to file a

fresh suit by removing the defects. Further, it appears that some

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necessary parties have not been added to the suit. It has also been

stated in the said petition that since the hearing has already

commenced, it may not be possible on the part of the plaintiff to

amend the plaint.

6.

The private Opposite Parties, i.e., defendants in the suit, in

the suit have also filed an objection/counter affidavit to the petition

under Annexure-4 for withdrawal of the suit wherein the

defendants have taken stand in para-9 of the written statement that

they have already raised the aspect that the sisters are no way

connected with the case. It is further stated in the objection that the

property fells to the share of the mother of defendant No.1 and

thereafter present defendant No.1 succeeded the property. It has

also been alleged by the defendants that by filing the petition under

Annexure-4, the Plaintiff-Petitioner wants to linger the suit which

has otherwise been targeted by this Court.

7.

The trial court vide its order dated 7.02.2023 rejected the

prayer of the Plaintiff-Petitioner. On perusal of the rejection order,

it appears that the court below has rightly observed that the defects

pointed by the plaintiff can very well be addressed by filing an

amendment application. The trial court has also observed that since

the suit in question has already been targeted by this Court, it is

difficult to accept the prayer made by the Plaintiff-Petitioner for

withdrawing of the suit.

8.

Learned counsel for the Petitioner submitted that already

five witnesses have been examined from the side of the plaintiff

and finally by holding that by rejecting the application of the

Plaintiff-Petitioner is no way prejudiced, the application of the

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Petitioner has been rejected.

9.

On the perusal the impugned order dated 07.02.2023, this

Court is of the view that by rejecting the application of the

Petitioner under Order23, Rule-3(b) of the C.P.C. as per Anexure-4

vide order dated 07.02.2023, the trial court has not committed any

illegality. However, this Court would like to dispose of the present

Civil Revision Petition by granting liberty to the Petitioner to file

an amendment application as has been observed by the trial court

in its order dated 07.02.2023.

10.

In such view of the matter, if the Petitioner moves an

application for amendment within a period of two weeks from

today, the same shall be considered and disposed of in accordance

with law as expeditiously as possible, preferably within a period of

four weeks thereafter after giving opportunity of hearing to the

defendants.

11.

With the aforesaid observation,