Hema Shinde and Anr. vs Sarvsadharan And Ors.

This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 24/01/2020 passed by First Civil Judge, Class-II, Gwalior in Civil Suit No.68-A/2012.

It appears that earlier, the petitioners had filed an application under Order 23 Rule 3 of CPC seeking permission to withdraw the suit with liberty to file a fresh suit. The said application was rejected by the Trial Court by order dated 21/02/2019 against which the petitioners have filed Miscellaneous Petition No.1341/2019. Earlier, this Court had granted interim relief, but in the light of the judgment passed by the Supreme Court in the case of Asian Resurfacing of Road Agency P. Ltd. and another vs. Central Bureau of Investigation, passed in Criminal Appeal Nos. 1375-1376 of 2013, the Trial Court proceeded further. Thereafter, the petitioners filed an application under Order 23 Rule 1 read with Section 151 of CPC (Annexure P3) and prayed for following reliefs:-

अतः माननीय न्यायालय से प्रार्थना है कि प्रार्थीगण द्वारा प्रस्तुत वर्तमान आवेदन पत्र रिकार्ड पर लिया जाकर इस आशय की स्वीकृति प्रदान करते हुयें स्वीकार फरमाया जावे कि वादीगण प्रचलित वाद को इसी अवस्था में वापिस लेना चाहता है, और वर्तमान वाद को वादपत्र में वर्णित तथ्यों के आधार पर आगें नही चलाना चाहता है। इस कारण वर्तमान वाद वापिस लेने की स्वीकृति प्रदान की जावे।

The said application has been rejected by the Trial Court on the ground that earlier the application filed under Order 23 Rule 3 of CPC has already been rejected by order dated 21/02/2019 and if the present application is allowed in the light of the contents of paragraph 8, then it would amount for granting liberty to file a fresh suit, therefore, this application cannot be allowed and accordingly, it was rejected.

Challenging the order passed by the Court below, it is submitted by Shri Braru that the Trial Court committed a mistake by holding that in case if this application is allowed, then it would amount to give liberty to the petitioners to file a fresh suit, whereas the petitioners have not sought any liberty in the prayer clause. During the course of argument also, it is submitted by Shri Braru that the petitioners do not want any liberty to file a fresh suit and the petitioners want to withdraw their suit without any liberty.

In view of the submissions made by the counsel for the petitioners, the counsel for the respondent No.2 submitted that in case, if the petitioners want to withdraw the suit without any further liberty, then he has no objection.

Considered the submissions made by the counsel for the parties.

The petitioners, in their application under Order 23 Rule 1 read with Section 151 of CPC have not claimed any liberty in their relief clause. Furthermore, the counsel for the petitioners has also made a categorical statement that the petitioners want to withdraw their suit without any further liberty.

In view of the prayer clause of the application filed under Order 23 Rule 1 read with Section 151 of CPC as well as in the light of the categorical statement made by Shri Braru, the order dated 24/01/2020 passed by First Civil Judge, Class-II, Gwalior in Civil Suit No.68-A/2012. is hereby set aside. The civil suit filed by the petitioners is dismissed as withdrawn without any liberty. No order as to costs.

With the aforesaid, this petition is finally disposed of.