-1- 2025:CGHC:8891 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 276 of 2022 1 - Khemlal S/o Nanki Ram Aged About 60 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. 2 - Kirit Ram S/o Nanki Ram Aged About 59 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. 3 - Paras Ram S/o Punau Ram Aged About 56 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. 4 - Gore Lal S/o Punau Ram Aged About 46 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. 5 - Radheshyam S/o Punau Ram Aged About 35 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. 6 - Itwari S/o Ganpat Aged About 22 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. 7 - Santoshi D/o Ganpat Aged About 19 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. 8 - Noni Bai W/o Gapat Aged About 35 Years Caste Patel, R/o Village Aamapali, Tahsil Jaijaipur, And, District : Janjgir-Champa, Chhattisgarh. ... Petitioner(s) Versus 1 - Gore Lal S/o Ghasia Aged About 40 Years Caste Patel, R/o Village Aamapali, P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh. 2 - Digember Patel S/o Ghasia Aged About 38 Years Caste Patel, R/o Village Aamapali, Digitally signed by NADIM MOHLE -2- P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh. 3 - Santosh Patel S/o Darash Ram Aged About 40 Years Caste Patel, R/o Village Aamapali, P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh 4 - Rath Ram S/o Darash Ram Aged About 35 Years Caste Patel, R/o Village Aamapali, P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh 5 - Munna Lal S/o Darash Ram Aged About 30 Years Caste Patel, R/o Village Aamapali, P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh 6 - Tijo Bai D/o Darash Ram Aged About 21 Years Caste Patel, R/o Village Aamapali, P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh 7 - Saput Bai W/o Darash Ram Aged About 60 Years Caste Patel, R/o Village Aamapali, P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh 8 - Samaru S/o Ghurwa Marar Aged About 52 Years Caste Patel, R/o Village Aamapali, P.H.N., Tahsil And Police Station Baradwar, And, District : Janjgir-Champa, Chhattisgarh 9 - State Of Chhattisgarh Through Collector, District : Janjgir-Champa, Chhattisgarh 10 - Radheshyam S/o Khiksai Aged About 50 Years Caste Patel, R/o Riwabahar, District : Korba, Chhattisgarh 11 - Sita Ram S/o Khiksai Aged About 48 Years Caste Patel, R/o Riwabahar, District : Korba, Chhattisgarh 12 - Ghanshyam S/o Khiksai Aged About 46 Years Caste Patel, R/o Riwabahar, District : Korba, Chhattisgarh ... Respondent(s) (Cause Title is taken from Case Information System) Petitioner : Mr. Deepak Kumar Singh, Advocate For State : Mr. Dashrath Prajapati, Panel Lawyer For Respondents No. 1, 2, 8, 10, 11 & 12 : Mr. Jeet Ram Patel, Advocate -3- Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 20.02.2025 1) The petitioners/plaintiffs have filed this petition seeking the following relief(s):- “10.1. This, Hon'ble Court may kindly be pleased to issue a appropriate writ/order/direction thereby quashing the impugned order Annexure P/1 dated 28.02.2022. 10.2 This, Hon'ble Court may kindly be pleased to issue a appropriate writ/order/direction for grant the permission to withdraw from such suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. 10.3. This, Hon'ble Court may kindly be pleased to call for entire records. 10.4 That, any other Writ, Order, Directions or Relief which this Hon'ble Court may deem fit may kindly be passed in favour of the petitioners.” 2) The petitioners/plaintiffs have challenged the order dated 28.02.2022, passed in Civil Suit No.54-A/2016, by the Civil Judge Class-II, Jaijaipur, District Janjgir- Champa, whereby an application moved by the plaintiffs under Order 23 Rule 1(3) of the CPC, was rejected. 3) Facts of the present case are that the plaintiffs filed a suit for declaration of title and permanent injunction over the suit land, bearing survey No.31, ad- measuring 4.862 hectares and other survey numbers, situated at village Amapani, Tehsil-Jaijaipur, District Janjgir-Champa. The defendants filed their written statement. The plaintiffs examined some of the witnesses and the last -4- opportunity was granted on 25.10.2021. At that stage, the plaintiffs moved an application under Order 23 Rule 1 (3) of the CPC to withdraw the civil suit with liberty to file a fresh suit on the ground that there are various formal defects in the suit. The defendants filed a reply to that application and denied its contents. The learned trial Court vide order dated 28.02.2022 rejected the application on the ground that some of the plaintiffs’ witnesses have already been examined; the civil suit was filed in the year 2016; and no case is made out permitting the plaintiffs to withdraw the suit with liberty to file a fresh suit. 4) Mr. Deepak Singh, learned counsel appearing for the petitioners would submit that the learned trial Court ought to have allowed the application moved by the petitioners under Order 23 Rule 1(3) of the CPC as there may be formal defects. In support thereof, he placed reliance on the judgment passed by the Co- Ordinate Bench in the matter of Ashraf Ahmad Khan v. Mohd. Saeed Khan & ors., 2019 (1) CGLJ 402. 5) On the other hand, Mr. Jeet Ram Patel, Advocate appearing for respondents No. 1, 2, 8, 10, 11 & 12 would submit that permission to file a fresh suit cannot be granted on mere asking. He would further submit that if the Court is satisfied that a suit must fail by reason of some formal defects or there are sufficient grounds for allowing the plaintiffs to institute a fresh suit, in such a situation, the permission can be granted. He would also contend that in the application moved under Order 23 Rule 1 (3) of the CPC, the plaintiffs have not stated any -5- reasonable ground to withdraw the civil suit with liberty to file a fresh suit. He would also submit that this petition deserves to be dismissed. 6) Mr. Dashrath Prajapati, learned Panel Lawyer appearing for the State would submit that it is a dispute between the petitioners and the private respondents. 7) Heard learned counsel for the parties and perused the documents. 8) The Order 23 Rule 1(3) of the CPC reads as under:- “1. Withdrawal of suit or abandonment of part of claim.— (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. xxx (3) Where the Court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” 9) A bare reading of Order 23 Rule 1(3) of the CPC would make it clear that the permission to withdraw the suit with liberty to file a fresh suit can be granted if the Court is satisfied that a suit must fail by reason of some formal defects and grounds are available for allowing the plaintiff to institute a fresh suit. -6- 10) In the application moved by the plaintiffs, the plaintiffs have stated that there are various formal defects in the suit. The plaintiffs have not specifically stated the defects and simply made a prayer to withdraw the suit with liberty to file a fresh suit. 11) It would be worthy to take note that some of the plaintiffs’ witnesses were examined before the application under Order 23 Rule 1 (3) CPC was moved and the last opportunity was granted to the plaintiffs to examine the remaining witnesses, and at that stage, such an application was moved. Admittedly, the suit was filed in the year 2016. 12) In the matter of Ashraf Ahmad Khan (supra), the application moved by the plaintiff under Order 23 Rule 1(3) of the CPC was rejected by the learned trial Court and the same was allowed by the co-ordinate Bench as no notice under Section 80 (C) of the CPC was served to defendant No.2; thus, there was formal defect of non-service of notice, but the facts of the present case are entirely different from the facts of the Ashraf Ahmad Khan (supra). 13) Taking into consideration the averments made in the application under Order 23 Rule 1(3) of the CPC, the provisions of Order 23 Rule 1(3) of the CPC and the stage of the trial, I am not inclined to grant any relief. 14) Accordingly, this petition fails and is hereby dismissed. No cost(s). Sd/- Rakesh Mohan Pandey Judge NADIM