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2015 DIGILAW 664 (ORI)

Krupa Bhoi v. Keshan Majhi

2015-12-01

BISWANATH RATH

body2015
ORDER : Biswanath Rath, J. 1. Heard learned counsel for the parties. This matter arises out of an order dated 17.3.2007 passed by the learned Civil Judge (Junior Division), Bolangir in T.S. No. 27 of 2003 in rejecting an application under Order 23, Rule 1(3)(b) of the Code of Civil Procedure filed at the instance of the plaintiff whereby the plaintiff sought for withdrawal of the suit with liberty to file a fresh suit on the same subject. The defendants filed their objection indicating therein that in the event of withdrawal of the suit, they are likely to be prejudiced and the intention of the plaintiffs to drag the litigation in order to harass the defendants. 2. Considering the submissions of the learned counsel appearing for the parties, the trial court by order dated 17.3.2007 allowed the application for withdrawal of the suit debarring the plaintiff for filing any fresh suit on the same cause of action on the ground that if the plaintiff will be allowed to withdraw the suit with liberty to file fresh suit, the defendants will be highly prejudiced. Therefore, party allowing the application the trial Court only permitted the withdrawal of the suit. 3. In assailing the aforesaid order, learned counsel appearing for the plaintiff-petitioner submits that since the application for withdrawal of the suit with liberty to file a fresh suit was filed under the provision of Order 23, Rule 1(3)(b) of the Code of Civil Procedure, it was incumbent upon the trial court to either allow the application as a whole or refused the same. The trial court allowing the application in part is illegal and by the impugned order, the plaintiff has lost his vital right in the suit as the suit being permitted to be withdrawn without leave deprives his right of filling of a fresh suit. 4. On the other hand, learned counsel appearing for the opposite parties submits that the suit was filed in the year 2003 and as a matter of fact even by withdrawal of the suit also the defendants are also sufficiently harassed and in the event the petitioner is permitted to file a fresh suit, they will be prejudiced for no fault of them. 5. 5. Having heard learned counsel for the parties, this Court finds that there is no dispute that the petitioner by filing the application sought for permission of the court for withdrawal of suit with liberty to file a fresh suit under Order 23, Rule 1(3)(b) of the Code of Civil Procedure. 6. Order 23 Rule 1(3)(b) of the Code of Civil Procedure reads as follows: "1. Withdrawal of suit or abandonment of part of claim- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Provided that where the plaintiff is a minor or other person to whom the provisions contained in rule to 14 of Order XXXII extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court. Xxx xxx xxx (3) Where the court is satisfied:- Xxx xxx xxx (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." Xxx xxx xxx 7. The provision clearly authorizes a person to take leave of the court for filing a fresh suit in respect of the subject matter involved in the suit existing on withdrawal of the present suit. Reading of the prayer in the application also found to be in consonance with the provision under Order 23, Rule 1(3)(b) of the Code of Civil Procedure. Further reading of the impugned order this Court finds that the trial court refused to grant permission for filing a fresh suit on the premises that in the event the plaintiff is permitted to file a fresh suit, the defendant will be prejudiced. In such event this Court is of the view that in view of the above observation, nothing prevented the trial court to deny the leave and rejecting the application. In such event this Court is of the view that in view of the above observation, nothing prevented the trial court to deny the leave and rejecting the application. But once the trial court allowed withdrawal, there is no other option for the trial court than to grant the leave also otherwise the purpose of the provision under Order 23, Rule 1(3)(b) of the Code of Civil Procedure gets defeated. Accordingly, this Court finds the mere permission for withdrawal of the suit is erroneous and contrary to the provision under Order 23, Rule 1(3)(b) of the Code of Civil Procedure. 8. Consequently, while interfering in the impugned order refusing the leave of the court to re-file a fresh suit, this Court grants leave to the petitioner to file a fresh suit. The writ petition stands allowed to the extent indicated hereinabove.