LAWS(CHH)-2025-3-16

SUKHNANDAN SINGH Vs. KUNDAN SINGH

Decided On March 26, 2025
SUKHNANDAN SINGH Appellant
V/S
KUNDAN SINGH Respondents

JUDGEMENT

(1.) This Civil Revision is directed against the order dtd. 5/10/2023 passed by the 3rd Civil Judge, Class-II, Ambikapur in Civil Suit No.130-A/2018 whereby the application preferred by the petitioner/plaintiff under Order 23 Rule 1 of the CPC for withdrawal of the suit with liberty to institute a fresh suit has been rejected.

(2.) Facts of the case are that the petitioner/plaintiff has instituted a civil suit on 23/6/2018 for declaration of title and permanent injunction of the land situated at village Chhindkalo, Tehsil Darima, District Ambikapur for 18 Khasra numbers, total area 14.53 acre. During the pendency of the suit, defendant No.1 - Rajmaniya, wife of Geda, died. Respondent No.1/defendant filed the written statement. Issue have been settled and the case was fixed for evidence. However, during the course of evidence of the plaintiff, certain necessary averments could not be made in the plaint and certain documents which were necessary were also not filed. In these circumstances, the subject application was moved. The defendant raised an objection and by the impugned order, the said application was rejected.

(3.) Learned counsel for the petitioner would submit that the impugned order is not sustainable and is against the spirit of Order 23 Rule 1 (3) of the CPC. The trial Court has wrongly relied upon the judgment of the Hon'ble Supreme Court in the matter of K.S. Bhoopathy & Others Vs. Kokila & Others,(2000) 5 SCC 458. inasmuch as in the said matter, the case was reached to the Second Appellate Stage and on that stage, the High Court had allowed the application filed under Order 23 Rule 1 (3) of the CPC, whereas in the present case, the defendant's evidence did not commence. Learned counsel for the petitioner would further place reliance on the order passed by the M.P. High Court in the matter of Trilochansingh Vs. Indrajeet Kaur,CR No.60/2020, decided on 21/12/2022. In the said matter, taking into consideration the grounds that failure to make necessary pleadings in the plaint and not filing the relevant documents along with the plaint and not making the pleadings in respect of the documents filed along with the plaint, the High Court has allowed the application filed under Order 23 Rule 1 (3) of the CPC filed by the plaintiff and the plaintiff was permitted to institute a fresh suit with liberty as sought for by him. Therefore, the impugned order may be set aside and the Revision may be allowed.