Madhya Pradesh High Court
Abhay Kumar Jain vs The State Of Madhya Pradesh on 4 March, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:4866
1 CR-113-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 4 th OF MARCH, 2025
THROUGH VIDEO CONFERENCING
CIVIL REVISION No. 113 of 2025
ABHAY KUMAR JAIN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ram Krishna Upadhyay - advocate for the petitioner.
Shri Dileep Awasthi, learned GA for the respondents/State.
ORDER
Heard on the question of admission.
This civil revision petition under Section 115 of Code of Civil
Procedure, 1908 is directed against order dated 17.12.2024 (Annexure P/1)
passed in regular civil suit bearing number RCSA/127/2019 by learned Third
Additional District Judge, Shivpuri, District Shivpuri (MP), whereby an
application filed under Order 23 Rule 1 (3) (b) of Code of Civil Procedure,
1908 (herein after referred to as the CPC) for withdrawal of the suit with a
liberty to file afresh civil suit, if occasion arises, has been dismissed.
2. A civil suit for declaration and injunction with regard to disputed
land situated at Ward No.11, AB Road, Shivpuri, District Shivpuri (MP)
along with relief of declaring order passed by Tehsildar, District Shivpuri
(defendant No.2) on 10.12.2019 as illegal, null and void against the plaintiff,
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was filed. The application under Order 23 Rule 1 (3) (b) (Annexure P/7) was
filed for permission to withdraw the civil suit with a further permission to
file a civil suit, if any occasion arises in future, which has been dismissed by
the impugned order.
3. Learned counsel for the petitioner vehemently assailing the
impugned order, submits that the learned trial Court manifestly, illegally,
arbitrary and contrary to the provisions of law, fact and evidence, has recited
the provision of Order 23 Rule 1 (3) (b) of the CPC for emphasizing that
whenever there are sufficient grounds for allowing the plaintiff to institute a
fresh suit, then the plaintiff can be granted permission to withdraw the suit
with a liberty to file afresh suit. The present suit was filed because there was
an order of eviction against the plaintiff - present petitioner, but before a
Division Bench of this Court, the State Government has already submitted an
affidavit that the plaintiff is not an encroacher.
4. In view of the above, when there is no point in contesting the suit,
therefore, the impugned order passed by the learned trial Court deserves to
be set aside by allowing the revision petition and granting a permission to
file a civil suit, if in future occasion arises.
5. In support of his contentions, learned counsel has placed reliance
on the judgment passed by a coordinate bench of this Court in Kunwarbai v.
Gangaram reported in 2013 Volume II MPLJ 173 and a judgment delivered
by the Apex Court in case of V. Rajendran and another v. Annasamy
Pandtan (D) through LRs. Karthyayant Natchiar reported in AIR 2017 SC
685 .
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6. Heard learned counsel for the petitioner and perused the record.
7. The main reason for filing the present suit before the Court was
that the Tehsildar has held the plaintiff as an encroacher on the disputed land
and also that he is not a title holder of that land. The learned trial Court
relying upon the judgment delivered by the Apex Court in case of K.S.
Bhoopathy and others v. Kokila and others reported in AIR 2000 SC 2132
has held that no sufficient reason has been show by the plaintiff to withdraw
the suit, therefore, permission cannot be granted with a liberty to file a suit
afresh, in future.
8. In case of Kunwarbai (supra), it has been held that formal defect
connotes defect of various kinds not affecting the merits of the case i.e. a
defect in nature prescribed by rules and procedure. The provision envisaged
under Order 23 Rule 1 (3) of the CPC can be set in motion and the
permission to withdraw the suit with a liberty to file a fresh suit can be
granted only when the defect pointed out is formal one and not substantial
one.
9. Learned trial Court has rightly relied upon the judgment delivered
by the Apex Court for interpreting the provision for withdrawal of the suit, as
provided under Clause (b) of Sub Rule (3) of Order 23 of the CPC. Unless
the Court is satisfied about the sufficiency of the grounds for allowing the
plaintiff to institute afresh suit for the same claim or part of the claim on the
same cause of action, it cannot give a liberty to file a fresh suit for the same
cause of action.
10. In case of V. Rajendran (supra) relied upon by learned counsel
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for the petitioner also, it has been held that the power to allow withdrawal of
the suit is discretionary in nature. Plaintiff must make out a case in terms of
Order 23 Rule 1 (3) (a) or (b) of the CPC and a liberty to bring afresh suit
can be given only if the conditions in either of Clause (a) or Clause (b) is
made out. The principle enshrined is founded on public policy to prevent
institution of suit again and again on the same cause of action. This
judgment also does not help to the petitioner in any way.
11. In view of the above, this Court is of the considered view that the
learned trial Court has not committed any irregularity or illegality in not
allowing the plaintiff to withdraw the suit with a liberty to file afresh suit, in
future.
12. Resultantly, this revision, being devoid of substance, fails and is
hereby dismissed.
Pending interlocutory application, if any, also stands disposed off.
(BINOD KUMAR DWIVEDI)
JUDGE
AKS
