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Madhya Pradesh High Court Allows Litigant To Withdraw Suit And File It Afresh, 7 Years After It Was Instituted

Zeeshan Thomas
28 Dec 2022 3:31 PM GMT
Madhya Pradesh High Court (Indore bench), Justice Subodh Abhyankar, rape case quashed, false promise to mary,

The High Court of Madhya Pradesh,Indore Bench recently allowed an application under Order 23 Rule 1 and 3 of the CPC moved by a litigantto withdraw his suit with liberty to file it afresh, more than seven years after the case was instituted before a Civil Judge in Dewas.

Allowing the application, JusticePranay Verma said that considering the conduct of the plaintiff and thestage of the proceedings in the suit, it would only be fair to allow him to withdrawit and institute the suit afresh.

"There has not been any decision on merits in the case in any manner.It is not a case where plaintiff has already led his evidence and wants towithdraw the suit since he wants to come with body of fresh evidence to putforth his case. The stage of the suit is not where witnesses of plaintiff havefailed to support his case and he wants to obtain an opportunity to commencethe trial afresh in order to avoid the result of his previous bad conduct so asto prejudice the opposite party. Thus in my opinion the reasons given by theplaintiff in his application for seeking leave to withdraw the suit withliberty to institute a fresh suit would constitute "sufficient grounds"as contemplated under Order 23 Rule 1(3)(b) of the CPC."

The plaintiff in September 2015 had instituted a suit for declaration of title and furthersought for permanent as well as mandatory against the defendant. During thecourse of proceedings, the plaintiff moved an application forwithdrawal of suit with liberty to institute it afresh on the same facts andcause of action.

Rejecting his application, the lower court observed that thatthe grounds taken by the plaintiff were not sufficient for it to permitwithdrawal of the suit with liberty to file it afresh. Aggrieved, the plaintiff moved the high court in 2020.

The plaintiff submitted before the high court that he had moved the said application so as to institutea fresh suit on the same cause of action upon making the relevant pleadings andfiling necessary documents.

Heasserted that since he was not aware of the legal requirements at thetime of filing of the suit, he could not give the necessary information to his counsel.He added that there were certain relevant documents that threw a greatdeal of light on the dispute which could also not be filed because he did notunderstand their relevance and importance earlier.

Regarding the stage ofproceedings, it was pointed out that only affidavits in evidence had been filedand their cross-examination had not begun yet. Thus, he argued that if hisapplication was not allowed, his suit was bound to fail and therefore he prayedthat he be permitted to institute the suit afresh.

Per contra,the defendant submitted that the plaintiff had been prolonging thematter before the trial court. It was argued that the grounds taken by the plaintiff in his application were not sufficient for allowing him to withdraw the suit withliberty to institute it afresh. Thus, it was contended that his application wasrightly rejected by the court below and that no interference was called for inthe impugned order.

Examining thesubmissions of parties and documents on record, the Court found substance inthe arguments put forth by the plaintiff. It noted that the suit had notreached a stage wherein its withdrawal would have a negative impact on the rightsof the defendant.

"Though the suit has been instituted in the year 2016 but presentlyonly the affidavits in evidence of plaintiff and his witnesses have been filedand their cross-examination has not begun. Thus the actual trial of the suithas not started and no right has been created in favour of the defendant whichcan be withdrawn by the plaintiff. The proceedings have not reached a stagewhere it can be said that withdrawal of the suit would have any prejudicialeffect upon rights of the defendant."

The courtfurther observed that the plaintiff may have been negligent towards prosecution of his suitbut the same was in respect of his pleadings and filing of documents.

"Theproceedings of the case do not show that the plaintiff has been so negligent in prosecution of his case that he may be casticized to be such a litigant thathis rights for a fair trial ought to be denied to him. The suit cannot be saidto have reached such a stage where its withdrawal would permit the plaintiff tothwart any finding which may be imminently recorded against him. If plaintiffis forced to continue with his present suit it would amount to shutting out afair trial on merits and punish him for errors made by him in good faith whichcan only be effectively set right by permitting him to institute a fresh suit."

Thus, the bench held that the trial court had erred in rejecting the application moved by thePetitioner under OXIII R1, 3CPC.

Accordingly, the petition was allowed and the petitioner was permitted to withdraw his suit with liberty to institute it afresh.


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