Pratima Kunwar vs Bashistha Narayan Singh

Sanjay Kumar Dwivedi, J

Heard Mr. Rajeev Kumar, the learned counsel appearing on behalf of the petitioner as well as Mr. Pankaj Srivastava, the learned counsel appearing on behalf of the sole Opposite Party.

This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 15.05.2023 passed by learned Civil Judge (Jr.Division), Nagar Untari, Garhwa in Original Suit Case No.74 of 2006 whereby the petition filed by the petitioner under Order XXIII Rule-1(3) read with Section 151 of the CPC has been rejected by the learned court on the ground of belated filing of the said petition.

Mr. Rajeev Kumar, the learned counsel appearing on behalf of the petitioner submits that the said suit has been instituted for declaration of right, title and interest. He submits that during the course of the proceeding it has been transpires that inadvertently the suit was filed haphazardly and in view of that the petition was filed for withdrawal of the same which has been rejected by the learned court which is against the mandate of law. On this ground, he submits that the said order may kindly be set aside. He relied in the case of Sneh Gupta v. Devi Sarup And Others, (2009) 6 SCC 194 and referred to paragraph no.35 of the said judgment which is quoted below:

“35. A right to withdraw a suit in the suitor would be unqualified, if no right has been vested in any other party.”

Mr. Shrivastav, the learned counsel appearing on behalf of the sole Opposite party submits that the argument is already going on and after seventeen years the said petition has been filed and in light of that the learned court has rightly passed the said order.

It is an admitted position that Original Suit No.74 of 2006 was instituted in the said year for declaration of right, title and interest and petitioner herein has been substituted subsequently as the original plaintiff has left for his heavenly abode and thereafter the said petition has been filed. The suit was filed in the year 2016 and after seventeen years the said petition has been filed for withdrawal of the same to file afresh. After seventeen years the same has been tried to withdraw with liberty to file a fresh suit when the proceeding in the original suit has reached at the stage of argument. If such a situation is there, the petitioner is having remedy to file appropriate petition for amendment and that are being allowed by the court liberally if the nature of the suit is not being changed. However, after seventeen years such a petition is filed to withdraw the suit to file afresh and that too at the argument stage and in view of that the learned court has been pleased to dismiss the said petition. So far as the judgment relied by the learned counsel for the petitioner is concerned, the ratio of that judgment is to the effect that if the right is not vested in another party, that can be allowed and that can be the subject matter of the trial only.

As such, the Court finds that there is no illegality in the impugned order, and hence, this petition is dismissed.