More than seven years after the case was initially filed before a Civil Judge in Dewas, the High Court of Madhya Pradesh's single judges bench in Indore, which was comprised of Justice Pranay Verma, granted an application under Order 23 Rule 1 and 3 of the CPC made by a litigant to withdraw his suit with the freedom to file it again. 

In granting the request, the bench stated that it would only be reasonable to permit the plaintiff to withdraw the complaint and file a new lawsuit given his actions and the state of the litigation.

"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 to withdraw the suit since he wants to come with a body of fresh evidence to put forth his case. The stage of the suit is not where witnesses of the plaintiff have failed to support his case and he wants to obtain an opportunity to commence the trial afresh in order to avoid the result of his previous bad conduct so as to prejudice the opposite party. Thus in my opinion the reasons given by the plaintiff in his application for seeking leave to withdraw the suit with liberty to institute a fresh suit would constitute "sufficient grounds"as contemplated under Order 23 Rule 1(3)(b) of the CPC."

In September 2015, the plaintiff filed a lawsuit against the defendant seeking a declaration of title and other relief, including mandatory and permanent restraining orders. The plaintiff made a motion to withdraw the lawsuit during the trial with the option to re-file it with the identical facts and cause of action. 

Rejecting his application, the lower court noted that the plaintiff's arguments were insufficient to allow for the claim to be withdrawn with the option to be refiled. The plaintiff filed a high court petition in 2020 after becoming irate.

The plaintiff claimed before the high court that he had filed the aforementioned application in order to start a new lawsuit for the same cause of action after filing the required pleadings and papers. 

He said that he was unable to provide his attorney with the essential information because he was unaware of the legal requirements at the time the lawsuit was filed.

He continued by saying that there were certain important documents that may have shed a lot of light on the issue but were not filed because he had not recognised their significance and relevance earlier.

It was noted that only affidavits in evidence had been produced, and their cross-examination had not yet started, regarding the stage of the proceedings. He consequently contended that if his application was denied, his lawsuit would inevitably fail; as a result, he pleaded for permission to file the lawsuit again.

On the other hand, the defendant argued that the plaintiff had been dragging out the proceedings before the trial court. It was contended that the plaintiff's justifications in his application were insufficient to provide him the right to withdraw the lawsuit and refile it. It was therefore argued that the court below correctly dismissed his motion and that the impugned order didn't require any interference.

The Court discovered merit in the plaintiff's allegations after reviewing the parties' representations and the documents filed. It was stated that the lawsuit was not yet at a point where the defendant's rights would be adversely affected by its withdrawal.

"Though the suit has been instituted in the year 2016 but presently only the affidavits in evidence of plaintiff and his witnesses have been filed and their cross-examination has not begun. Thus the actual trial of the suit has not started and no right has been created in favor of the defendant which can be withdrawn by the plaintiff. The proceedings have not reached a stage where it can be said that withdrawal of the suit would have any prejudicial effect upon rights of the defendant."

The court additionally noted that while the plaintiff may have been careless in how his case was handled, it was also true of his pleadings and document filings.

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

The bench concluded that the trial court erred in dismissing the petitioner's application under O XIII R 1, 3 CPC. 

As a result, the petition was granted, and the petitioner was free to re-file his lawsuit after withdrawing it.

Case Title: TRILOCHANSINGH VERSUS INDRAJEET KAUR
Citation: CIVIL REVISION No.60 of 2020
Link: https://mphc.gov.in/upload/indore/MPHCIND/2020/CR/60/CR_60_2020_FinalOrder_21-Dec-2022.pdf