2025:HHC:22920 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.180 of 2025 Decided on: 16.07.2025 Bakhtawar Singh … Petitioner Versus Shri Rajinder Kumar & another … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 ____________________________________________________ _ For the petitioner : Mr. P.S. Goverdhan, Senior Advocate, with Mr. Rakesh Thakur, Advocate. For the respondents : Mr. N.K. Thakur, Senior Advocate, with Mr. Karan Veer Singh, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed THE order dated 07.02.2025, passed by the Court of learned Senior Civil Judge, Nalagarh, District Solan, H.P., terms wherein, an application filed by the present petitioner/plaintiff under Order XXIII, Rule 1 of the Civil Procedure Code has been dismissed. 2. Learned Senior Counsel appearing for the petitioner has argued that the impugned order is not sustainable in the eyes of law, for the reason that the learned Court below erred in not appreciating the spirit behind Order XXIII, Rule 1 of the Civil Procedure Code. He submitted that no prejudice could have been caused to the respondents/defendants in case the prayer made by the petitioner/ plaintiff for withdrawal of the suit with liberty to file a fresh one on the same cause was allowed. Learned Senior Counsel has taken the Court through the order under challenge and submitted that the learned Court below adopted a hyper-technical attitude in the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:22920 adjudication of the petition without appreciating that everything stood spelled out by the petitioner in the application as well as the rejoinder filed to the reply, as to what had necessitated the filing of the application. He, accordingly prayed that the impugned order be set aside and the petitioner be allowed to withdraw the suit with liberty to institute a fresh one on the same cause. 3. On the other hand, learned Senior Counsel appearing for the respondents submitted that there is no infirmity in the order under challenge, for the reason that the application filed under Order XXIII, Rule 1 of the Civil Procedure Code by the petitioner was not complying with the requirement of the said statutory provisions and the learned Trial Court rightly dismissed the application. Learned Senior Counsel also referred to the order passed by the learned Court and submitted that a perusal thereof demonstrates that the learned Court below correctly held that the endeavour of the party was to withdraw the case with liberty to file a fresh one by carrying out improvements therein because it was nowhere mentioned in the application filed under Order XXIII, Rule 1 of the Civil Procedure Code as to what the formal defect was, which required the withdrawal of the suit with liberty. 4. I have heard learned Senior Counsel for the parties and have also carefully gone through the order under challenge. Other documents appended with the petition have also been carefully perused. 5. It is not in dispute that application filed under Order 3 2025:HHC:22920 XXIII, Rule 1 of the Civil Procedure Code was filed by the plaintiff after four or five opportunities had been granted to the plaintiff to file a replication to the written statement filed to the plaint. Besides this, the suit instituted by the plaintiff, copy whereof is appended with the petition as Annexure P-2, demonstrates that it is a suit for declaration with consequential relief for permanent prohibitory injunction. The application filed under Order XXIII, Rule 1 of the Civil Procedure Code is appended with the petition as Annexure P-4. It is mentioned therein that the Civil Suit was pending adjudication and as there is a technical/formal defect in the suit, due to which the suit was likely to fail, hence the applicant desired to withdraw the suit with the permission to file a fresh suit on the same cause of action. It was further mentioned in the application that certain facts which were required to be pleaded in the plaint/ suit have not been pleaded and this fact came to the notice of the learned counsel for the plaintiff and to avoid dismissal of the suit at a later stage, plaintiff intended to withdraw the same with the permission to file a fresh one. 6. Order XXIII, Rule 1 of the Civil Procedure Code reads as under:- “ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS 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 4 2025:HHC:22920 person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (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 a suit or part of a claim, it may any 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. (4)Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of he other plaintiffs.” 7. A perusal of Order XXIII, Rule 1 (3) of the Civil 5 2025:HHC:22920 Procedure Code demonstrates that when the Court is satisfied that a suit must fail by reason of some formal defect or if there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of the claim, it may grant the plaintiff permission to withdraw from such suit or such part of the claim with the liberty to institute a fresh suit in respect of subject matter of such suit or part of the claim, on such terms as it deems fit. 8. Learned Trial Court while dismissing the application filed under Order XXIII, Rule 1 of the Civil Procedure Code, held that a party could be permitted to withdraw a suit with liberty to file a fresh suit only if one of the two situations of contingencies provided under Order XXIII, Rule 1 (3) of the Civil Procedure Code were fulfilled, i.e. either there was a formal defect in the suit or there were sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause. It further went on to hold that in the application the applicant had pleaded that there was a formal defect in the suit, but there was no elaboration as to what that formal defect was. Learned Trial Court further held that it was settled law that formal defect meant a defect which was formal such as omission to obtain necessary permission, mis-joinder of parties, cause of action or erroneous valuation which do not affect the merits of the case and in the application in hand, nothing of this sought was mentioned. Learned Trial Court thereafter went on to hold that the grounds mentioned in the application otherwise were also not sufficient for 6 2025:HHC:22920 allowing the withdrawal of the suit to institute a fresh one on the same cause because any lapse on the part of the applicant in elaborating the description of the suit property could otherwise be cured by carrying out an amendment in the pleadings. 9. In the considered view of this Court, the reasoning given by the learned Trial Court while dismissing the application filed by the petitioner calls for no interference. This is for the reason that the application that was filed under Order XXIII, Rule 1 of the Civil Procedure Code was as vague as it could have been. There was no mention therein as to what was the formal defect which necessitated the filing of the same. Though, learned Senior Counsel for the petitioner submitted that all these things stood spelled out in the rejoinder, but this Court is of the considered view that content of the application firstly have to be construed and perused and the rejoinder can only be an elaboration of what is spelled out in the application, meaning thereby that the rejoinder cannot contain fresh pleadings so as to improve the shortcomings in the main application. 10. Besides this, even otherwise in exercise of its jurisdiction under Article 227 of the Constitution of India, this Court is not to sit as an Appellate Court over the order passed by learned Trial Court. What has to be taken into consideration is perversity, if any, and abuse of jurisdiction. In the present case, none of these situations arise. The view that has been taken by learned Trial Court on the facts before it is a prudent and cogent view which could have been arrived at. 7 2025:HHC:22920 11. Accordingly, in the light of above observations, as this Court does not finds any merit in the present petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge July 16, 2025 (Rishi)