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2016 DIGILAW 822 (MP)

Sumati Evans (Ms. ) v. Mahima

2016-09-16

PRAKASH SHRIVASTAVA

body2016
ORDER 1. This writ petition under Article 227 of the Constitution of India is at the instance of plaintiffs in the suit challenging the order of trial Court dated 29.4.2015 whereby petitioner's application under Order 23 rule 1 CPC for withdrawal of suit with liberty to file fresh suit, has been rejected. 2. In brief the petitioners have filed the suit for declaration and permanent injunction against the respondents with the plea that petitioners are in possession of the suit property. The petitioners thereafter had filed the application under Order 23 rule 1 of CPC for withdrawal of the suit on the ground that after rejection of the application for temporary injunction the respondents have taken the illegal possession and that there was some mistake relating to succession in the suit on account of lack of legal knowledge by the plaintiffs. The application was opposed by the respondents and trial Court by the impugned order has rejected the application on the ground that petitioners have filed one suit against the respondent No.1 and his father in the Court of Vth Civil Judge Class II Ujjain in 2011 and thereafter he had filed another suit alongwith Sumesh Ivansh on the basis of will against respondent No.1 and one more suit by petitioners themselves has been filed. It has been noted by trial Court that earlier suits were withdrawn by the parties and present fresh suit was filed. In the present suit respondent No.1 had given the written statement in favour of respondent No.2 and then had tried to withdraw his pleadings. It has further been found by the trial Court that on the same issue in respect of same property different parties have filed different suits in different Courts and that no formal defect in the suit has been pointed out and the subsequent event of dispossession can be brought on record by way of amendment. Hence trial Court has refused the permission to withdraw the suit. 3. Hence trial Court has refused the permission to withdraw the suit. 3. Counsel for petitioners submits that trial Court has committed an error in refusing to withdraw the suit without appreciating that suit was at the initial stage and there was formal defect about determination of share in terms of Indian Succession Act, 1925 and another suit was got dismissed since the plaintiffs therein wanted to amend the Civil Suit No.29-A/2012 and that suit filed by Sumesh Kumar Ivansh was dismissed in default and one more suit is for declaration, partition and possession, hence the same would not operate as bar for withdrawing the present suit. 4. As against this learned counsel for respondents has opposed the writ petition and has submitted that provision of Order 23 rule 1 CPC is attracted in the matter since the petitioners have not challenged sale deed and respondent's plea since beginning is that they are in possession of the suit property. In support of his submission he has placed reliance upon Single Bench judgment of this Court in the matter of Durga Prasad S/o Sitaram and others v. Laxminarayan s/o Ram Gopal Sharma, reported in 2008(2) MPLJ 23 . 5. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the trial Court has rejected the petitioner's application for withdrawal of the suit under Order 23 rule 1 of the CPC with liberty to file the fresh suit on the ground that the plea relating to subsequent taking of the possession can be incorporated by amending the plaint and that the defendant No.1 has filed the written statement in favour of the defendant No.2 and subsequently he had made an attempt to withdraw the said averment. It has further been noted that no formal defect has been pointed out in the suit. 6. Under Order 23 rule 1(3) of the CPC the suit can be withdrawn with liberty to file the fresh suit in case if either of the two conditions are satisfied; firstly - that a suit must fail by reason of some formal defect, or secondly- 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. In the present case no formal defect has been pointed out by counsel for the petitioner and so far as the issue of subsequent taking of possession or non-mentioning of the proper share is concerned, the same is a curable defect, for which the appropriate application for amendment can be filed and in respect of which the trial Court has already observed that the petitioner can file an application for amendment. Since the petitioner has failed to disclose any sufficient ground for allowing him to institute a fresh suit for the subject matter of the suit, therefore, the trial Court has rightly rejected the petitioner's application. That apart it has been noted by the trial Court that the defendant No.1 has filed the written statement in favour of the defendant No.2 and subsequently an attempt was made to withdraw the same. It has also been pointed out that the issues have already been framed and the plaintiff has filed the affidavits under Order 18 rule 4 of the CPC. 7. Counsel for the respondents has also placed reliance upon the judgment of this Court in the matter of Durga Prasad v. Laxminarayan, reported in 2008(2) MPLJ 23 , wherein it is held that the Court has discretion to allow the withdrawal of the suit if the conditions laid down therein are satisfied and no mandatory duty is cast on the Court to allow the withdrawal application. 8. In view of the aforesaid, I am of the opinion that the impugned order passed by the trial Court rejecting the petitioner's application under Order 23 rule 1 of the CPC does not suffer from any patent illegality. 9. Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Supreme Court in the matter of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 , has held that 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 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. 10. The writ petition is accordingly dismissed. S. K. Shastri for petitioners; M. L. Pathak for respondents.