1 - Sukhnandan Singh S/o Shri Karmu Aged About 55 Years Occupation Agriculturist, R/o v. 1 - Kundan Singh S/o
Case Details
1 2025:CGHC:14626 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 127 of 2023 1 - Sukhnandan Singh S/o Shri Karmu Aged About 55 Years Occupation Agriculturist, R/o Village Chhindkali, Thana Darima Tahsil Ambikapur, District Surguja (C.G.) ... Petitioner(s) versus 1 - Kundan Singh S/o Shri Ramsingh Aged About 40 Years Occupation Teacher, Posted At Badadamali R/o Village Bargawan, Thana Darima, District Surguja (C.G.) 2 - State Of Chhattisgarh Through Collector, Surguja, District Surguja (C.G.) ... Respondent(s) For Petitioner(s)
Legal Reasoning
interference by this Court invoking revisional jurisdiction.
Arguments
: Shri Sunil Sahu, Advocate. For Respondent No.1 For Respondent No.2 : Shri Anjiv Kumar Singh appears on behalf of Shri Bhupendra Singh, Advocate. : Shri Dilman Rati Minj, Govt. Advocate. Hon'ble Shri Deepak Kumar Tiwari, J Order On Board 26/03/2025 1. This Civil Revision is directed against the order dated 5.10.2023 passed by the 3rd Civil Judge, Class-II, Ambikapur in Civil Suit No.130-A/2018 KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.03.26 18:19:23 +0530 2 whereby the application preferred by the petitioner/plaintiff under Order 23 Rule 1 of the CPC for withdrawal of the suit with liberty to institute a fresh suit has been rejected. 2. Facts of the case are that the petitioner/plaintiff has instituted a civil suit on 23.6.2018 for declaration of title and permanent injunction of the land situated at village Chhindkalo, Tehsil Darima, District Ambikapur for 18 Khasra numbers, total area 14.53 acre. During the pendency of the suit, defendant No.1 – Rajmaniya, wife of Geda, died. Respondent No.1/defendant filed the written statement. Issue have been settled and the case was fixed for evidence. However, during the course of evidence of the plaintiff, certain necessary averments could not be made in the plaint and certain documents which were necessary were also not filed. In these circumstances, the subject application was moved. The defendant raised an objection and by the impugned order, the said application was rejected. 3. Learned counsel for the petitioner would submit that the impugned order is not sustainable and is against the spirit of Order 23 Rule 1 (3) of the CPC. The trial Court has wrongly relied upon the judgment of the Hon’ble Supreme Court in the matter of K.S. Bhoopathy & Others Vs. Kokila & Others1 inasmuch as in the said matter, the case was reached to the Second Appellate Stage and on that stage, the High Court had allowed the application filed under Order 23 Rule 1 (3) of the CPC, whereas in the present case, the defendant’s evidence did not commence. Learned counsel for the petitioner would further place reliance on the 1 (2000) 5 SCC 458 3 order passed by the M.P. High Court in the matter of Trilochansingh Vs. Indrajeet Kaur2. In the said matter, taking into consideration the grounds that failure to make necessary pleadings in the plaint and not filing the relevant documents along with the plaint and not making the pleadings in respect of the documents filed along with the plaint, the High Court has allowed the application filed under Order 23 Rule 1 (3) of the CPC filed by the plaintiff and the plaintiff was permitted to institute a fresh suit with liberty as sought for by him. Therefore, the impugned order may be set aside and the Revision may be allowed. 4. On the other hand, learned counsel for respondent No.1/defendant would support the impugned order. 5. Heard learned counsel for the parties and perused the documents annexed with the Revision with utmost circumspection. 6. It is well settled that when the plaintiff files an application for simple withdrawal of the suit under sub-rule (1) of Order 23, he does so as a matter of right and the defendant cannot compel the plaintiff to prosecute the suit. The defendant can merely ask the Court to impose cost upon the plaintiff. However, the defendant has all the rights to object to an application made by the plaintiff under sub-rule (3) and the Court shall decide whether or not the application should be allowed on its own merit. Order 23 Rule 1 (3) of the CPC lays down the following grounds on which a Court may allow withdrawal of the suit. The said provision reads as under:- “(1) xxxx xxxx xxxx 2 CR No.60/2020, decided on 21.12.2022 (2) xxxx 4 xxxx xxxx (3) 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 the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim.” 7. Reading of the aforesaid provision would make it clear that the suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. 8. In the matter of K.S. Bhoopathy (Supra), it was held that it is the duty of the Court to be satisfied about the existence of “formal defect” or “sufficient grounds” before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the “formal defect” or “sufficient grounds”, such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the 5 “formal defect” or “sufficient grounds”. “Formal defect” is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, mis-joinder of parties, failure to disclose a cause of action etc. “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. 9. In the matter of V. Rajendran and Another Vs. Annasamy Pandian (dead) through legal representatives Karthyayani Natchiar3, the word “sufficient ground” has been further clarified and it was observed that in interpretation of the word “sufficient grounds”, there are two views: One view is that these grounds in clause (b) must be “ejusdem generis” with those in clause (a), that is, it must be of the same nature as the ground in clause (a) that is formal defect or at least analogous to them; and the other view was that the words “other sufficient grounds” in clause (b) should be read independent of the words a ‘formal defect’ and clause (a). Court has been given a wider discretion to allow withdrawal from suit in the interest of justice in cases where such a prayer is not covered by clause (a). In the said matter, the Hon’ble Supreme Court has found the defect in Survey number and held that the same would constitute a formal defect. 10. So far as the order passed by the High Court of MP in the matter of Trilochansingh, referred to above, and relied upon by counsel for the petitioner is concerned, in the said matter, cross-examination of the 3 (2017) 5 SCC 63 6 plaintiff has not begun, but in the present case, cross-examination of the plaintiff has already been done. In the circumstances, this Court is of the opinion that certain prejudice has been caused to the other side and a right has been created in favour of the defendant. 11. The Legislature has imposed duty on the Court to be satisfied about the existence of formal defect or other sufficient grounds before granting leave under sub-rule (3), as such right is not absolute in favour of the plaintiff as to permit or encourage abuse of process of the Court. 12. Considering the reasons assigned in the application that certain pleading has been left and material documents have also not been filed and also considering the observation made by the trial Court that such nature of defect is curable, I am of the opinion that no formal defect or sufficient ground has been established by the petitioner and the finding arrived at by the trial Court is just and proper, which does not call for any
Decision
13. In the result, the Revision fails and is hereby dismissed. Judge Sd/- (Deepak Kumar Tiwari) Barve