Madhya Pradesh High Court

Jagdish vs Kamarlal on 5 February, 2025

Author: Anil Verma

Bench: Anil Verma

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 5th OF FEBRUARY, 2025
MISC. PETITION No. 5966 of 2022
JAGDISH AND OTHERS
Versus
KAMARLAL AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava, Advocate for the petitioners.

Shri Gaurav Mishra, Advocate for respondent No. 1.
Shri Rajeev Shrivastava, Advocate for respondent No. 2.
Shri Sanjay Singh Kushwaha, Government Advocate for respondent
No.15/State.

Reserved on : 31.01.2025
Delivered on : 05.02.2025
ORDER

Per: ANIL VERMA J.

Petitioners have preferred this miscellaneous petition under Article 227

of the Constitution of India being aggrieved by the impugned order dated 17.10.2022 (Annexure P-1) passed by Additional Judge to the Court of Civil Judge, Junior Division, Lateri, District Vidisha in Civil Suit No. 4- A/2016, whereby an application under Order 23 Rule 1(3) of CPC filed by respondent No.1/plaintiff has been allowed and he has been permitted to withdraw his suit with liberty to file a fresh suit.

2. Brief facts of the case are that respondent No. 1/plaintiff filed a civil

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2 MP-5966-2022 suit before the Trial Court for declaration of title and permanent injunction. At the stage of defendant evidence, respondent No. 1/plaintiff filed an application under Order 23 Rule 1(3)(a) and (b) of CPC. After hearing both the parties, learned Trial Court has allowed the said application and permitted the plaintiff to withdraw his suit with liberty to file a fresh suit. Being aggrieved by the aforesaid, petitioners/defendants have preferred this petition.

3. Learned counsel for the petitioners submits that after filing civil suit by respondent No. 1/plaintiff, petitioners and other defendant filed their written statements and the Trial Court after framing issues fixed the case for evidence. On 27.09.2022 Trial Court has decided the application under

Section 65 of Evidence Act filed by the plaintiff, in which, it has been prayed that his original sale deed has been lost, therefore, he prays that copy of sale deed may be admitted in the evidence. Vide order dated 27.09.2022, the Trial Court has rejected his application and fixed the case for defendant evidence. Since the original sale deed has been lost and, therefore, the suit of plaintiff would fail, hence, he has prayed that civil suit should be permitted to be withdrawn with liberty to file a fresh suit. It is submitted that these are not sufficient reasons to permit respondent No. 1/plaintiff to withdraw his suit. The Trial Court has already pointed out that it is not a formal defect, therefore, the Trial Court has committed a grave error in allowing the application with liberty to file a fresh suit. Hence, he prays that the impugned order be set aside and application filed by respondent No. 1/plaintiff be dismissed without any liberty.

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4. Learned counsel for the petitioners relied upon the judgment of this Court in the case of Uma Devi and others Vs. Nagar Palika Begamgunj and others [1999 (2) MPJR 487], judgment passed by High Court of Rajasthan in the case of Radha Krishna and others Vs. The State of Rajasthan and others [AIR 1977 Raj. 131], judgment passed by High Court of Punjab and Haryana in the case of Sheo Ram Vs. Chandgi Ram and others [AIR 1972 PUN 30] , judgment passed by High Court of Nagpur in the case of Sukhain and others Vs. Liquidator, Co-operative Society, Pondi Simaria and others [AIR 1944 NAG 183].

5. Learned counsel for the respondents opposed the prayer and prayed for its rejection by supporting the impugned order passed by the Trial Court. He relied upon the law laid down by this Court in the case of Mahendra Kumar Jain Vs. Brajesh Kumar Jain and others [C.R. No.129/2022, decided on 23.03.2022], Chinta and others Vs. Bishwanath Singh and others [MP No.1419/2017, decided on 18.11.2024] and judgment passed by High Court of Orissa in the case of Trinath Basant Ray and another Vs. Sk. Mohamood and another [AIR 2019 ORISSA 78].

6. Both the parties heard at length and perused the entire record with due care.

7. The core question that falls for consideration is whether the trial Court is justified in refusing to grant leave to the plaintiffs to withdraw the suit in view of the ground mentioned therein. To appreciate the situation, I may usefully refer to order 23 Rule 1(3) of the CPC which reads as under:

"(3) Where the Court is satisfied:-

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(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."

8. First objection raised by the petitioners is that at the stage of evidence, plaintiff cannot be permitted to withdraw his suit with liberty to file fresh suit, but from perusal of Order 23 Rule 1(a) of CPC, it is clear that after institution of suit at any time suit may be withdrawn, therefore, first objection raised by the petitioners is not acceptable.

9. In the case of Sukhain (supra), the High Court of Nagpur has held as under:-

"3. In Watson & Co. v. Collector of Rajshahye (69) 13 M.I.A. 160 their Lordships of the Privy Council, dealing with an older Code containing similar provisions, held that permission could not be granted simply because the plaintiff had failed to examine necessary witnesses or to produce such evidence as he later felt he could have adduced. So also in Singhai Rajilal v. Kanhai MANU/NA/0071/1920: A.I.R. 1922 Nag. 84 the same

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5 MP-5966-2022 decision was reached for a similar reason. In view of these authorities it is impossible, at any rate in this Court, to hold that leave can be granted when a party fails to produce the requisite evidence. Other cases dealing with broader facts hold that leave should not be granted when there has been a trial and the plaintiff is likely to fail, not "by reason of some formal defect" or for some defect affecting the merits of the case, but simply because he has not produced such evidence as he might have produced. These rulings are: Manrakhan Lal v. Parmanand MANU/NA/0051/1935:

A.I.R. 1935 Nag. 185, Ramrao Bhagwantrao v. Appanna Samage MANU/MH/0124/1939 : AIR 1940 Bom 121 and Budhan v. Korhey MANU/UP/0460/1934: AIR 1935 AII 381."

10. In the case of Uma Devi (supra) , coordinate Bench of this Court has held as under:-

"From the aforesaid, it is graphically clear that a trial de novo is not to be lightly granted to enable the plaintiff to come prepared to fight afresh legal battle. In a case where a plaintiff realises that there has been no cause of action, the matter would be different. If the suit is premature, the plaintiff may be granted permission to withdraw the same to file after the lis ripens. But in the case at hand, as is apparent, the plaintiffs wanted to withdraw the suit to come with a body of fresh evidence to put forth his case. Such a prayer of the plaintiffs is not permissible. In fact, it would amount to the abuse of the process of law. Quite apart from

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the above, it is to be kept in mind that the suits have been linked and there has been substantial progress in one suit. Considering the factual matrix in entirety, I am of the humble view that the order of the Court below does not warrant any interference."

11. In the instant case, plaintiff has filed a civil suit for declaration of title and permanent injunction on the basis of sale deed dated 16.07.1982, but the respondent No. 1/plaintiff has failed to file original sale deed and an application under Section 65 of Evidence Act filed by the plaintiff for proving the aforesaid sale deed through its copy has been declined by the Trial Court, therefore, in absence of sale deed, the plaintiff's suit may be failed, therefore, the Trial Court has granted liberty to the respondent No. 1/plaintiff to file a fresh suit. Hence, it is a formal defect and the reasons assigned by the Trial Court appear to be bonafide.

12. In the case of Chinta (supra), coordinate Bench of this Court has held as under:-

"11. Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Hon'ble Supreme Court in the matter of Shalini Shyam Shetty and another vs Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has held that the High Court in exercise of its power of

superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The High

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7 MP-5966-2022 Court can exercise this power when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. The learned trial Court, in the considered opinion of this Court, has taken a plausible view which does not require any interference."

13. Same principle has also been laid down by Orrissa High Court in the case of Trinath Basant Ray (supra) and this Court in the case o f Mahendra Kumar Jain (supra). In view of the aforesaid, this Court does not find any good reason to interfere in the impugned order.

14. Accordingly, this miscellaneous petition sans merits and is hereby dismissed.

(ANIL VERMA) JUDGE

Abhi