Madhya Pradesh High Court
Smt. Bhuribai vs Ramratan on 21 May, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 3556 of 2022
BETWEEN:-
SMT. BHURIBAI W/O GIRDHARILAL, AGED
ABOUT 85 YEARS, OCCUPATION:
AGRICULTURIST, R/O GRAM BAVLYA KHURD
TEHSIL AND DISTRICT INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI KARPE PRAKHAR MOHAN- ADVOCATE )
AND
RAMRATAN S/O SHRI NANDRAM, AGED ABOUT
76 YEARS, OCCUPATION: AGRICULTURIST, R/O
GRAM BAVLYA KHURD TEHSIL AND DISTRICT
INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ABHIJEET SINGH CHOUHAN- ADVOCATE )
Reserved on : 07.05.2024
Pronounced on : 21 .05.2024
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the court passed the following:
ORDER
By this petition preferred under Article 227 of Constitution of
India, the petitioner/defendant has challenged the order dated 13.05.2022
passed in Civil Suit No.RCSA/1090/2019 by the Ist Civil Judge, Class II,
District Indore, whereby an application under Order XXIII Rule 1(3) read
with Section 151 of CPC preferred by the plaintiff / respondent has been
allowed.
2. The plaintiff had instituted an action for declaration, permanent
injunction and declaring that mutation is null and void. Upon appearing
before the trial Court, the defendant filed an application under Order VII
Rule 11 of CPC for rejection of the plaint raising various grounds therein.
Thereafter, the plaintiff filed the application under Order XXIII Rule 1
(3) of CPC for withdrawal of the suit which has been allowed by the trial
Court by the impugned order and the suit has been permitted to be
withdrawn with liberty to file a fresh suit.
3. The aforesaid order has been criticized by the learned counsel
for the defendant on the ground that since an application under Order VII
Rule 11 of the CPC for rejection of the plaint was pending, the suit could
not have been permitted to be withdrawn. The application under Order
VII Rule 11 CPC ought to have been decided first and thereafter only the
application under Order XXIII Rule 1(3) CPC ought to have been
decided. As long as the application under Order VII Rule 11 CPC was
pending, the trial Court had no jurisdiction to adjudicate upon any other
application including one under Order XXIII Rule 1 (3) CPC. Reliance
has been placed by him on the decision of the Apex Court in Saleem
Bhai and others Vs. State of Maharashtra (2003) 1 SCC 557 and of this
Court in WP No.14349 of 2014 (Rajpal Singh Vs. Sunderlal) decided on
30.03.2016.
4. Per contra, learned counsel for the plaintiff has submitted that
the trial Court had every jurisdiction to consider and decide the
application under Order XXIII Rule 1(3) CPC even though the
application under Order VII Rule 11 CPC preferred by the defendant was
pending. It has hence not committed any error in passing the impugned
order in view of which the petition deserves to be dismissed.
5. I have considered the rival submissions and have perused the
record.
6. In Saleem Bhai (supra) it was held by the Apex Court that an
application under Order VII Rule 11 CPC can be decided at any stage of
the suit and that while deciding the same it is the averments as contained
in the plaint which would be germane. The power can be exercised even
prior to registration of the plaint or even after issuing summons to the
defendants and at any time before conclusion of the trial. However, it was
not held that if an application under Order VII Rule 11 CPC is filed then
the Court ceases to have jurisdiction to decide any other application till
decision of that application. In Rajpal Singh (supra) it was held by this
Court that if an application under Order VII Rule 11 CPC is pending then
application for temporary injunction ought not to be considered prior to
decision of that application since the same goes to the very root of
maintainability of the proceedings. This judgment was in respect of
decision of an application for issuance of temporary injunction and it was
held that firstly maintainability of the suit ought to be considered since
prima facie case also includes prima facie maintainability of the suit.
However, it was not held that if application under Order VII Rule 11 CPC
is filed then application for withdrawal of the suit cannot be considered.
7. No provision or judgment has been shown by the learned
counsel for the defendant to substantiate his contention that if an
application under Order VII Rule 11 CPC is preferred then an application
such as one under Order XXIII Rule 1(3) CPC cannot be considered and
decided till decision of application under Order VII Rule 11 CPC and the
suit cannot be permitted to be withdrawn with liberty to file a fresh suit.
If upon filing of the suit any objection is taken by the defendant and it is
submitted that the plaint ought to be rejected and the plaintiff then seeks
withdrawal of the suit with liberty to file a fresh suit even in view of the
objection raised by the defendant, I do not see any prohibition contained
anywhere in the Code of Civil Procedure for the plaintiff to adopt such a
course. If plaintiff wishes to withdraw the suit and rectify the mistakes
therein and institute a fresh duly constituted suit then there is no reason
why he cannot be permitted to do so and instead of permitting withdrawal
of the suit, the plaint should be rejected.
8. The application under Order XXIII Rule 1(3) CPC has to be
considered only in the light of provisions contained therein and if it is
found that the suit is likely to fail on account of some formal defect or
there are sufficient grounds for allowing him to institute a fresh suit the
power thereunder can very well be exercised by the Court which power
would not be arrested or denuded from the Court merely because of
pendency of an application under Order VII Rule 11 CPC. It would be
totally permissible for the trial Court to consider the application for
withdrawal filed by the plaintiff within the four corners of the provisions
of Order XXIII Rule 1(3) of CPC.
9. In view of the aforesaid discussion, I do not find any error
having been committed by the trial Court in allowing the application
under Order XXIII Rule 1(3) of CPC filed by the plaintiff and in
permitting him to withdraw the suit with liberty to file a fresh suit. As a
consequence, the impugned order is affirmed and the petition is
dismissed.
(PRANAY VERMA)
JUDGE
jyoti
