URESHCHANDRA Vs. BABULAL

JUDGEMENT

(1.) This petition has been filed by the applicant under Article 227 of Constitution of India being aggrieved by the order dtd. 21/9/2020, passed by learned Civil Judge, Senior DivisionClass-II, Petlawad, District Jhabua in Civil Suit No.44-A/2020 whereby the application filed under Order 23 Rule 1 of CPC has been dismissed with liberty to file fresh application with new cause of action.

(2.) Learned counsel for the applicant submitted that in this case on earlier occasion, this Court had ordered for issuance of notice, however, since the respondent no.1 has not appeared before the trial Court hence there is no requirement for issuance of notice to the respondent no.1. Counsel further submitted that application under Order 23 Rule 1(3) of CPC has been allowed but the learned trial Court has dismissed the suit with liberty to the plaintiff to file a fresh suit on the basis of new cause of action, therefore, he has a limited prayer to remand back the matter to trial Court and petitioner/plaintiff be permitted to file a fresh suit on the subject matter and trial Court be directed to consider his fresh application under Order 23 Rule 1(3) of CPC in accordance with law.

(3.) As per settled legal position of filing an application under Order 23 Rule 1(3) of CPC there will be two options only, either the application will be rejected or if the application is allowed the applicant should have liberty to file a fresh suit.