Jhanik Ram Chouhan S/o Manglu Chouhan Aged About 70 Years R/o Village Godhi v. 1. Om Prakash S/o Son Sai Aged About 50 Years R/o Village -Godhi, Thana
Case Details
1 SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.07.04 11:52:53 +0530 2025:CGHC:29280 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 576 of 2025 Jhanik Ram Chouhan S/o Manglu Chouhan Aged About 70 Years R/o Village Godhi, Thana Tamnar, Tahsil Tamnar, District Raigarh Chhattisgarh. ... Petitioner(s) versus 1. Om Prakash S/o Son Sai Aged About 50 Years R/o Village -Godhi, Thana - Tamnar, Tahsil Tamnar, District Raigarh Chhattisgarh. 2. Khirsagar S/o Son Sai Aged About 55 Years At Present R/o Chitwahi, Thana Tamnar, Tahsil Tamnar, District Raigarh Chhattisgarh. 3. The State Of Chhattisgarh Through The Collector, Raigarh, District Raigarh Chhattisgarh. ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner For State/Respondent No. 3
Legal Reasoning
: Mr. Hari Agrawal, Advocate : Mr. Prateek Sharma, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 01. 07.2025 1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 A writ and/or an order in the nature of writ of appropriate nature do issue calling the relevant records pertaining to case of the petitioner from the court below 2 concerned for its kind perusal. 10.2 A writ and/or an order in the nature of writ of appropriate nature do issue to setting aside the order dated 06.03.2025 (Annexure P-1) passed by the Court of Second Civil Judge Sr. Division, Raigarh, Link Court- Gharghoda, District Raigarh passed in Civil Suit No. 71- A/2024, and in effect, allow the application filed under Order 23 Rule 1(3)(b) of CPC (Annexure P-5) in toto, in the interest of justice and facts and circumstances of the case. 10.3 Any other relief which this Hon'ble Court may deem fit in the facts & circumstances of case. 10.4 Cost of the petition may also be awarded.” 2. Learned counsel for the petitioner would submit that the plaintiff/petitioner filed a suit for a declaration to the effect that the petitioner is in possession of the suit property described in Schedule A and also sought relief of permanent prohibitory injunction to the effect that the defendants/respondents be directed not to interfere with the possession. He would further submit that the petitioner was in possession of the suit property bearing survey No. 485/1 measuring 15 decimals situated at village Godhi, Tahsil Tamnar, District Raigarh. He would also submit that taking advantage of the old age of the petitioner, on 21.10.2024, respondents No. 1 & 2 armed with clubs and sticks destroyed the fence as well as the vegetables sown on the suit property and started raising
Decision
permanent construction over it. He would contend that in view of the above, the petitioner in addition to the captioned suit for declaration and prohibitory injunction filed an application under Order 39 Rules 1 & 2 of CPC for the grant of temporary injunction. He would further contend that on 20.11.2024, a summons was issued to the defendants and on 07.12.2024, they appeared before the learned Court below. He would also contend that as the defendants were raising 3 permanent construction, an application for urgent hearing was also moved along with an application under Section 151 of CPC for the grant of status- quo but the said application was rejected vide order dated 13.12.2024. He would argue that on 19.12.2024, respondents No. 1 & 2 filed a reply to the application for the grant of temporary injunction and the matter was posted for arguments on the said application on 27.12.2024. It is further argued that on account of the non-availability of the Presiding Officer, the matter was adjourned for 06.01.2025 and it was again adjourned on 06.03.2025. It is also argued that on 07.02.2025, the plaintiff filed an application under Order 23 Rule 1(3) (b) of CPC seeking withdrawal of the suit with the liberty to file a fresh suit on the ground that during the pendency of the suit, the defendants dispossessed the plaintiff by raising permanent construction. Mr. Agrawal would further aver that respondents No. 1 & 2 filed their reply. The learned trial Court vide order dated 06.03.2025 rejected the application on the ground that the relief of recovery of possession is not a relief which cannot be sought by way of amendment in the existing suit. He would also aver that the learned trial Court erred in law by rejecting the application and directing the plaintiff to carry out the amendment. He would further state that the learned trial Court completely failed to appreciate the complications of proper Court fee, and pecuniary jurisdiction associated with the amendment to be made in the plaint while incorporating new relief of restoration/recovery of possession and demolition of the construction raised by defendants No. 1 & 2. He would state that the expression ‘formal defects and sufficient ground’ mentioned in Order 23 Rule 1(3)(b) must be given a very wide and liberal approach. He would further state that filing a fresh suit would not cause any prejudice to defendants No. 1 & 2, and thus, 4 the learned trial Court committed an error of law while rejecting the application. In support thereof, he has placed reliance on the judgment passed by the High Court of Delhi in the matter of Damyanti Rani Bakshi vs. Maharaj Kumar Mehta reported in 2004 (73) DRJ 504. 3. On the other hand, learned counsel appearing for the State would support the order passed by the learned trial Court. 4. I have heard learned counsel appearing for the parties and perused the documents placed on the record. 5. Admittedly, a civil suit for the declaration to the effect that the suit property is in possession of the petitioner and a permanent prohibitory injunction was filed by the petitioner. The application moved by the petitioner for a temporary injunction could not be decided and on 07.02.2025, the petitioner moved an application under Order 23 Rule 1(3) (b) of CPC inter alia on the ground that during the pendency of the Civil Suit, defendants No. 1 & 2 took over the possession and started raising construction over the part of the suit property. The petitioners sought the liberty to institute a fresh suit on the ground that respondents No. 1 & 2 have dispossessed him by raising a permanent construction. 6. Order 23 Rule 1 deals with the withdrawal of the suit or abandonment of part of the claim. Sub-rule 3 states that where the Court is satisfied - (a) that a suit must fail by reason of some formal defect, or (b) 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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of claim with liberty to institute a fresh suit in respect of the subject 5 matter of such suit or such part of the claim. 7. A bare reading of the provisions would make it clear that the plaintiff can be permitted to withdraw the suit, if the suit will fail by reason of some formal defects or there are sufficient grounds for allowing such a prayer. 8. Order 23 Rule Rule 1 (3) (b) states that the plaintiff may withdraw his suit where the Court is satisfied that a suit must fail by reason of some formal defect. The word “formal defect” means a defect of form prescribed by Rules or Procedure. A defect which goes to the root of the plaintiff’s claim is not a formal defect. The formal defect need not necessarily be in the pleadings. Some examples of formal defects are as under:- i. Omission to obtain the permission of the insolvency Court to file suit. ii. Mis-joinder of party or the cause of action. iii. Failure to disclose the cause of action for the plaint. iv. Erroneous valuation of the subject matter of the suit. v. Suit based on Section 22 of the Hindu Succession Act to enforce the preferential right to acquire property and absence of prayer for relief and non-payment of proper fee thereon. vi. Non-payment of cost. vii. Absence of prayer for specific performance. viii. Non-service of notice under Section 25 of the Chit Funds Act on the members. ix. Wrong genealogy mistakenly given in the plaint, which would result in the failure of the suit. x. Omission by the plaintiff to claim proper relief. 9. In Order 23 Rule 1 (3) (b), the phrase “sufficient grounds” has been used. 6 The formal defects are fatal to the suit but do not go to the root and affect the merits of the plaintiff's claim, whereas sufficient grounds are different from and not analogous to formal defects and may not be fatal to the suit. The following are examples of sufficient grounds for allowing the plaintiff to withdraw his suit with the liberty to institute afresh. (a) Omission to file power of attorney. (b) Evidence has been not available, for no cause of the plaintiff. (c) The suit being premature and the cause of action accruing pending the suit. (d) Where the plaintiff has failed to prove in evidence, an important document essential to the success of this case. (e) Where two suits are brought and both are sought to be withdrawn to be consolidated into one and there is an appreciation that a second of the two suits would be barred under Order 2 Rule 2. (f) Where the plaintiff had been misled by the case of specific denial in the written statement. (g) Where a material document has been rejected as not properly stamped. (h) Mistake by the plaintiff in not seeking proper relief. (i) Notice under Section 80 of CPC not given to one of the defendants. (j) The defects should not be one curable by the amendment of the plaint. (AIR 1953 Bhopal 32). 10. In the present case, the petitioner moved an application for the withdrawal of the suit to claim relief of possession with liberty to institute a fresh suit, whereas, the learned trial Court held that the petitioner may move an application for amendment seeking such a relief. 11. In the matter of Damyanti Rani Bakshi (supra), the High Court of Delhi 7 held that Order 23, sub-rule 1 gives an unqualified right to a plaintiff to withdraw from a suit. Relevant para 5, 6 & 7 are reproduced herein below:- “5. My attention has also been drawn to the observations of the Hon'ble Supreme Court in M/s. Hulas Rai Baij Nath Versus Firm K.B. Bass and Co., where it has been observed that "the language of Order XXXIII, Rule 1, sub- Rule (1), gives an unqualified right to a Plaintiff to withdraw from a suit and, if no permission to file a fresh Suit is sought under sub-Rule (2) of that Rule, the Plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh Suit in respect of their subject matter under sub-Rule (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the Suit in such circumstances and to compel the Plaintiff to proceed with it." As there was palpably a formal defect in the Plaint, its rejection would have been possible had an application under Order VII Rule 11 been filed. Apart from awarding costs, there would have been no reason for the Court not to grant leave to file a fresh Suit on the same cause of action, subject to any other legal constraints or impediments. 6. The question that arises is what should be done at this stage. There is no opposition to the Revision, nor is there any appearance on behalf of the Respondents. The Defendant/Respondent has shown complete disinterest in the case. Such a party does not need to be compensated by costs. 7. In these circumstances, the impugned Order is set aside and the Suit is permitted to be withdrawn with leave to institute a fresh Suit on the same subject matter, if permissible in law. The Plaintiff will indubitably have to satisfy the Court seized with the fresh Suit that it is inter alia not barred by the principles of limitation.” 12. It was a case where a preliminary objection was raised by the defendant to the effect that the suit in the present form is not maintainable and is barred under Section 34 of the Specific Relief Act. In that premises, the plaintiff of that suit moved an application for the withdrawal of the suit with the liberty to institute a fresh suit and that application was rejected by the learned trial 8 Court on the ground that the formal defect could be cured by filing an application for amendment of the plaint. The High Court allowed the prayer of the plaintiff. 13. In the present case, no objection was raised by the defendants with regard to the maintainability of the Civil Suit instituted by the plaintiff. The suit was filed by the petitioner for declaration of title and permanent prohibitory injunction. During the pendency of the suit, the petitioner was dispossessed, and thereafter, he moved an application for withdrawal of the Civil Suit with liberty to file a fresh suit. The learned Trial Court granted liberty to the petitioner to move an application for amendment claiming therein the relief of recovery of possession and other reliefs. In the present case, the petitioner/plaintiff may claim possession of the suit property and demolition of the construction raised by defendants No. 1 & 2 by filing the amendment application and may affix proper Court fee. 14. Perusal of the contents of the application moved by the petitioner under Order 23 Rule 1 (3) (b) of CPC would make it clear that there was no formal defect in the plaint rather the petitioner has made an attempt to establish sufficient grounds” for the withdrawal of the suit with the liberty to file a fresh Civil Suit.” The ground raised by the petitioner was that during the pendency of the suit, defendants No. 1 & 2 took possession of some part of the suit property and started raising construction. 15. The plaintiff cannot be permitted to file a suit again and again, the sufficient grounds mentioned in clause (b) should be read independently of the word “formal defect”. The suit filed by the petitioner did not suffer from any formal defect. The plaintiff on account of the subsequent developments, moved an application for the withdrawal of the suit with liberty to file a fresh, whereas, 9 the petitioner has a remedy to move an application for amendment seeking relief of possession and demolition of the construction raised by defendants No. 1 & 2. The petitioner has not assigned any special reason to allow the application for withdrawal of the suit with the liberty to file a fresh suit; therefore, in my opinion, no case is made out for interference. 16. Accordingly, the instant petition fails and is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge $iddhant