Justice Ramesh Chand Malviya sets aside disposal order of 2022 by Sub-Judge-VIII, Siwan, Court cannot split up prayer, directs it to decide Title Suit as per law

On September 22, 2025, Patna High Court delivered four judgements in Laxman Raut vs. Bhola Raut and Ors., Shyam Kumar vs. The State Of Bihar and Ors., Sanjay Kumar vs. The Chairman District Legal Services Authority and Anr. and Krishna Gopal Prasad vs. The State Of Bihar, through its Secretary, Road Construction Department. The last three judgements were delivered by Justice Partha Sarthy.  

In Laxman Raut vs. Bhola Raut and Ors. (2025), Justice Ramesh Chand Malviya of the High Court in his 8-page long judgement concluded: "So, considering all the materials available on record and in the aforesaid background, this Court, therefore, does find that the learned Trial Court has committed error while disposing off the suit. Accordingly, the Civil Revision is allowed setting aside the impugned order passed by learned Sub-Judge-VIII, Siwan. 10. Learned Trial Court is directed to decide said Title Suit No. 340 of 1985 on merit in accordance with law."

The civil revision was filed against the order dated December 22, 2012 passed by Sub-Judge-VIII, Siwan in T.S. No. 340 of 1985 whereby and where under he allowed the petition dated March 9, 2005 filed by the defendant no. 32 and suit was disposed of.

The counsel for the petitioner submitted that after summons in the Title suit, defendants had appeared and filed their respective written statement at the stage where the suit was admitted. Further defendant no. 32 filed a petition under Section 10 of the CPC for maintainability of the suit on November 29, 2004 and on March 3, 2005. He further submitted that earlier petitioner filed an earlier suit bearing no. 160 of 1979 which was withdrawn with the permission of the Court and liberty was given to the petitioner to file fresh suit with the cost of Rs. 232/-. He submitted that the permission need not be in express terms as it was clear from the records that petitioner was permitted to withdraw the suit and permission was granted liberty to file a fresh suit vide order dated July 16, 1984. He submitted that trial Court erred in allowing the defendant no. 32 application and disposing the suit without applying his judicial mind.

The counsel for the respondents submitted that petitioner filed a Title Suit No. 160 of 1979 before Sub-Judge, Siwan and subsequently the said suit was withdrawn by the petitioner but permission to file a fresh suit was not granted. He also submitted that on the basis of law laid down by several judicial pronouncement, order dated December 22, 2012 passed by Sub-Judge-VIII, Siwan was perfectly correct and therefore the civil revision was fit to be dismissed. Order 23 Rule 1 of the CPC is the relevant provision for withdrawal of the Title Suit.

Justice Malviya observed: "It is evident to note that to withdraw the suit under Order 23 Rule 1 of the CPC with liberty to institute a fresh suit on the same subject matter has got to be treated as an indivisible whole and the Court cannot split up the prayer while refusing permission to institute a fresh suit and that it could not treat the application to be one under Order 23 Rule 1 of the Code for withdrawal of the suit simpliciter and, as such, the order allowing the application without expressly granting or refusing permission to institute a fresh suit is to be taken to have been passed granting the composite prayer made in the application under Order 23 Rule 1 of the Code, under which an order either allowing the application in toto or rejecting it in toto, could alone be legally passed by the Court. Therefore, when an application moved under Order 23 Rule 1 is allowed there is no escape from the conclusion that the prayer made in the application has been allowed in toto although no specific order is passed granting permission to institute fresh suit in respect of same subject matter and on the same cause of action.''

 

Order XXIII Rule 1(3) CPC lays down following grounds on which a Court may allow withdrawal of suit. It reads as under:

 "Rule. 1. Withdrawal of suit or abandonment of part of claim.-(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, 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.

 

Responding to the application for withdrawal of suit filed by the petitioner seeking liberty to file a fresh suit,  the order passed by the Court stated that ‘The application is therefore allowed while permitting the plaintiff to withdraw’. It was held that this should be construed as an order also granting liberty, as prayed. The Court cannot split the prayer made by the petitioner. It would indicate that nowhere in the order the Sub-Judge expressly rejected the prayer for permission for filing fresh suit. In the operative portion of the order and the application has been allowed without any reservation. 

 

In Sukumar Banerjee v. Dilip Kumar Sarkar, AIR 1982 Calcutta 17, it was held that where the plaintiff files an application to withdraw from the suit with liberty to sue afresh and the Court passes an order giving permission to withdraw the suit but nothing is said in the order regarding plaintiff's liberty to institute a fresh suit on the same cause of action, the order has to be read as granting permission to the plaintiff to sue afresh on the same cause of action.
 

Justice Malviya also drew on the decision in Khudi Rai vs. Lalo Rai reported in AIR 1926 Pat 259, wherein, the Patna High Court held that:
“Where an application is made by a plaintiff to withdraw a suit with liberty to bring a fresh suit on the same cause of action and an order is passed giving permission to withdraw, the suit although nothing is said in the order as to the plaintiff's right to institute a fresh suit, the order should be read along with the petition and construed as granting permission to institute a fresh suit."

 

Relying on the decision in Sukumar Banerjee vs. Dilip Kumar Sarkar, AIR 1982 Calcutta 17, Justice Malviya observed:''This Court is of the opinion that the said order is to be construed as to granting the prayer contained in the application as a whole and the plaintiff-petitioner has rightly filed the present suit in respect of the same subject matter and on the same cause of action. The learned Trial Court has erred in holding that the present suit filed by the plaintiff was barred by Order 23 Rule 1(4) of the CPC.''