Recently, the Chhattisgarh High Court dismissed the revision petition filed against the order dated 5.10.2023 passed by the Civil Judge, whereby the application preferred by the petitioner/plaintiff under Order 23 Rule 1 of the Civil Procedure Code (CPC) for withdrawal of the suit with liberty to institute a fresh suit had been rejected, holding that the suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient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.
Brief Facts:
The petitioner/plaintiff instituted a civil suit on 23.6.2018 for declaration of title and permanent injunction of the land. 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.
Contentions of the Petitioners:
The learned counsel for the petitioners argued 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 & Others (2000), since in the said matter, the case reached 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.
Observations of the Court:
The Court noted 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 Court observed that 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. The Court said that the suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient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 the withdrawal of a suit is discretionary. The Legislature has imposed a duty on the Court to be satisfied with the existence of the formal defect or other sufficient grounds before granting leave under sub-rule (3), as such right is not absolute in favor of the plaintiff.
Decision of the Court:
The Chhattisgarh High Court, dismissing the petition, held 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 interference by this Court invoking revisional jurisdiction.
Case Title: Sukhnandan Singh vs. Kundan Singh & Anr.
Coram: Hon’ble Justice Deepak Kumar Tiwari
Case No.: CR No. 127 of 2023
Advocate for the Petitioners: Shri Sunil Sahu
Advocate for the Respondents: Shri Anjiv Kumar Singh
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