GAURA BAI Vs. CHANDA BAI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 17/7/2018 passed by Sixth Civil Judge, Class-II, Vidisha in Civil Suit No.4-A/2016, by which the application filed by the petitioners under Order XXIII Rule 3 CPC has been partially allowed and the petitioner has been permitted to withdraw the suit, however, no liberty has been granted to file afresh.

(2.) The necessary facts for disposal of the present petition in short are that the petitioner has filed a suit for declaration of title in respect of the land situated in Chhirkheda admeasuring 2.551 hectare on the ground of adverse possession. The case was fixed for recording of evidence on 28/11/2017. The petitioner filed an application under Order XXIII Rule 1 CPC seeking permission to withdraw the suit with liberty to file afresh.

(3.) It is submitted by the counsel for the petitioners that by filing an application under Order XXIII Rule 1 (iii) CPC the petitioner had sought for liberty to file afresh, as the suit is liable to fail because of some formal defects. However, the trial court by the impugned order has allowed the application under Order XXIII Rule 1 CPC, but has refused to extend any liberty under Order XXIII Rule 1 (iii) CPC and, therefor,e the present writ petition has been filed.