Jharkhand High Court
Pratima Kunwar Aged About 62 Years Wife ... vs Bashistha Narayan Singh Son Of Late ... on 5 May, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2025:JHHC:13461 )
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 828 of 2023
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1.Pratima Kunwar aged about 62 years wife of late Ram Kumar Singh
2.Vikash Kumar, aged about 34 years, son of late Ram Kumar Singh
3.Vishal Kumar Singh, aged about 28 years son of late Ram Kumar Singh
4.Jay Kumar Singh, aged about 53 years son of late Balram Singh
All residents of Village Bagamdha @ Ramuna, PO Ramuna, PS
Ramuna, District Ghadwa, Jharkhand .... ... Petitioner(s)
-- Versus --
Bashistha Narayan Singh son of late Ramadhir Singh, resident of Village
Bagaundha @ Ramuna, PS Nagar Untari, District-Garhwa
...... .... ...Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) : Mr. Rajeev Kumar, Advocate
For the Opposite Party(s) : Mr. Pankaj Srivastava, Advocate
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7/05.05.2025 Heard Mr. Rajeev Kumar, the learned counsel appearing on behalf of the
petitioner as well as Mr. Pankaj Srivastava, the learned counsel appearing on
behalf of the sole Opposite Party.
2. This petition has been filed under Article 227 of the Constitution of India
for setting aside the order dated 15.05.2023 passed by learned Civil Judge
(Jr.Division), Nagar Untari, Garhwa in Original Suit Case No.74 of 2006 whereby
the petition filed by the petitioner under Order XXIII Rule-1(3) read with
Section 151 of the CPC has been rejected by the learned court on the ground of
belated filing of the said petition.
3. Mr. Rajeev Kumar, the learned counsel appearing on behalf of the
petitioner submits that the said suit has been instituted for declaration of right,
title and interest. He submits that during the course of the proceeding it has
been transpires that inadvertently the suit was filed haphazardly and in view of
that the petition was filed for withdrawal of the same which has been rejected
by the learned court which is against the mandate of law. On this ground, he
submits that the said order may kindly be set aside. He relied in the case of
Sneh Gupta v. Devi Sarup And Others, (2009) 6 SCC 194 and referred to
( 2025:JHHC:13461 )
paragraph no.35 of the said judgment which is quoted below:
"35. A right to withdraw a suit in the suitor would be
unqualified, if no right has been vested in any other party."
4. Mr. Shrivastav, the learned counsel appearing on behalf of the sole
Opposite party submits that the argument is already going on and after
seventeen years the said petition has been filed and in light of that the learned
court has rightly passed the said order.
5. It is an admitted position that Original Suit No.74 of 2006 was instituted
in the said year for declaration of right, title and interest and petitioner herein
has been substituted subsequently as the original plaintiff has left for his
heavenly abode and thereafter the said petition has been filed. The suit was
filed in the year 2016 and after seventeen years the said petition has been filed
for withdrawal of the same to file afresh. After seventeen years the same has
been tried to withdraw with liberty to file a fresh suit when the proceeding in
the original suit has reached at the stage of argument. If such a situation is
there, the petitioner is having remedy to file appropriate petition for
amendment and that are being allowed by the court liberally if the nature of the
suit is not being changed. However, after seventeen years such a petition is
filed to withdraw the suit to file afresh and that too at the argument stage and
in view of that the learned court has been pleased to dismiss the said petition.
So far as the judgment relied by the learned counsel for the petitioner is
concerned, the ratio of that judgment is to the effect that if the right is not
vested in another party, that can be allowed and that can be the subject matter
of the trial only.
6. As such, the Court finds that there is no illegality in the impugned order,
and hence, this petition is dismissed.
( Sanjay Kumar Dwivedi, J.)
SI/,
