BHURIBAI Vs. RAMRATAN

JUDGEMENT

(1.) By this petition preferred under Article 227 of Constitution of India, the petitioner/defendant has challenged the order dtd. 13/5/2022 passed in Civil Suit No.RCSA/1090/2019 by the Ist Civil Judge, Class II, District Indore, whereby an application under Order XXIII Rule 1(3) read with Sec. 151 of CPC preferred by the plaintiff / respondent has been allowed.

(2.) The plaintiff had instituted an action for declaration, permanent injunction and declaring that mutation is null and void. Upon appearing before the trial Court, the defendant filed an application under Order VII Rule 11 of CPC for rejection of the plaint raising various grounds therein. Thereafter, the plaintiff filed the application under Order XXIII Rule 1 (3) of CPC for withdrawal of the suit which has been allowed by the trial Court by the impugned order and the suit has been permitted to be withdrawn with liberty to file a fresh suit.

(3.) The aforesaid order has been criticized by the learned counsel for the defendant on the ground that since an application under Order VII Rule 11 of the CPC for rejection of the plaint was pending, the suit could not have been permitted to be withdrawn. The application under Order VII Rule 11 CPC ought to have been decided first and thereafter only the application under Order XXIII Rule 1(3) CPC ought to have been decided. As long as the application under Order VII Rule 11 CPC was pending, the trial Court had no jurisdiction to adjudicate upon any other application including one under Order XXIII Rule 1 (3) CPC. Reliance has been placed by him on the decision of the Apex Court in Saleem Bhai and others Vs. State of Maharashtra (2003) 1 SCC 557 and of this Court in WP No.14349 of 2014 (Rajpal Singh Vs. Sunderlal) decided on 30/3/2016.