MD Hussain Vs MD Hemayun

2025:JHHC:33499

IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 739 of 2023

Md. Hussain, Aged about 57 years, S/o Late Abdul Majid, Resident of Mohalla: Khund, P.O. & P.S.: Daltonganj, District: Palamau.

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..... .... Petitioner

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Versus

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Md. Hemayun, S/o Late Abdul Majid, Resident of Mohalla: Khund, P.O. & P.S.: Daltonganj, District: Palamau.

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Md. Belal

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Md. Ali @ Kalu

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Md. Imteyez

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Md. Naushad

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Md. Ejaz

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Sl. No. 2 to 6 sons of Late Md. Ibrahim, residents of Mohalla: Kund, P.O. & P.S.: Daltonganj, District: Palamau.

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Basudeo Vishwakarma, S/o Late Ramesh Vishwakarma, Resident of Mohalla: Belwa Tikar, At, P.O. & P.S.: Daltonganj, District: Palamau.

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Tanvir Ahmad Khan @Tannu, S/o Hamid Khan, Resident of Kali House Road, Mohalla: Kund, P.O. & P.S.: Daltonganj, District: Palamau.

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Amna Khatoon @ Fekan, Wife of Late Gulam Ahmad, Resident of Mohalla: Kund, P.O. & P.S.: Daltonganj, District: Palamau.

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… …. Opposite Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner : Mr. Sudhir Kumar Sharma, Advocate Mr. Shashi Shekhar Dwivedi, Advocate For the Opposite Parties : Mr. Manoj Kr. No.2, Advocate

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------

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Order No. 06 / Dated : 07.11.2025.

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Petitioner is the plaintiff and is aggrieved by the order dated 19.01.2023 by which an amendment petition filed under Order VI Rule 17 of the CPC has been rejected. The petitioner is also aggrieved by the order dated 03.05.2023 by which the prayer for withdrawing Partition Suit No. 80 of 2005 has also been turned down. The instant civil miscellaneous petition has been filed for quashing of both these orders.

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Plaintiff filed the suit for partition of the suit property shown in Schedule ‘A’ as well as in the rental income shown in Schedule ‘B’ and for appointment of Survey Knowing Pleader Commissioner, to demarcate the share.

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The petitioner filed the amendment petition dated 26.08.2021 proposing the following amendments:

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“I (a) - in the relief portion, before relief 'A' new relied ‘AA’ may be added with the following expression "For that the right title and possession of plaintiff and defendant No.-1 be jointly declared over the suit land of schedule-A and defendant No.-2 to 7 be directed to vacate the suit premises and hand over the suit premises of plaintiff and defendant No.-1 within

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2025:JHHC:33499

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stipulated period, failing which they may be vacated from suit premises through process of law and possession of the suit premises be hand over to plaintiff and defendant no.-1",

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I (b) - After relief AA, relief A-1 be added with the following expression-for that a money decree for the amount, so described in Schedule-B be passed against defendant no.-2 to 7 for rental amount described in Schedule-B since 30.08.2005 till its realization and defendant be directed to pay the decretal amount of rent within stipulated period falling which decretal amount may be realised through the process of law".

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II (c) - In relief portion A in second line as well as rental income shown in Schedule B may be deleted.

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III - The name of defendant no.-7 and 8 be struck off and the name of defendant no.-9 be read as defendant no.-7 and after giving fresh serial number of defendants, the defendant no.-2 to 7 be read as second set of defendant and from cause title the word “3rd set defendant" and "Performa Defendant" may be deleted.”

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The learned Trial Court rejected this petition vide order dated 19.01.2023 on the ground that the suit was filed for partition and the amendment petition was filed at the belated stage. Further, the relief, prayed for, was to change the nature of suit.

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The petitioner then filed a petition under Order XXIII Rule 1 (3) read with Section 151 of the CPC seeking leave of the Court to withdraw the suit and to institute fresh suit which has also been rejected on the ground that suit was very old and after lapse of 17 years, he had filed the petition for withdrawal of the suit.

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It is argued by the learned counsel for the petitioner that though 17 years have elapsed since filing of the suit, but the issues have been framed much later, and no cogent reason has been assigned by the learned Trial Court for refusing the permission to withdraw the suit.

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Having considered the submissions advanced on behalf of the petitioner, so far as the order rejecting amendment to the plaint is concerned, I do not find any infirmity for the reason that the suit was originally filed for partition of the schedule property, and by amendment the petitioner sought to convert the partition suit into a title suit and with a further prayer of eviction of the tenants (defendant no. 2 to 7) residing in the suit property. In effect, partition suit was to be converted into a title, as well as into eviction suit which would

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2025:JHHC:33499

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change the very nature of it and, therefore, there was no infirmity in the order rejecting the amendment petition.

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So far as the prayer for withdrawal of the suit with liberty to file fresh suit under Order XXIII Rule 1 (3) of the CPC is concerned, the Court may grant such permission with a liberty to institute a fresh suit on the same subject matter, only if the suit must fail by reason of some formal defects, or there are other sufficient grounds for allowing such withdrawal. This is to ensure that the litigation is not perpetuated and the opposite party/ defendant is not prejudiced by filing of repeated suits. The principle of judicial control, thus limits the plaintiff absolute right to withdraw, when the withdrawal is coupled with liberty to file again.

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A formal defect refers to defect not affecting the merit of the case, but relating to form or procedure such as improper valuation of the suit, defect in jurisdiction, misjoinder or non-joinder of parties, failure to issue notice under Section 80 of the CPC etc. In other words, it is not a defect going to the root of the plaintiff’s title or cause of action.

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10.The other sufficient grounds have been explained by the Hon’ble Apex Court to mean grounds analogous to formal defects though not strictly procedural, which justifies a fresh trial in the interest of justice. The Hon’ble Supreme Court has held in ( 2000) 5 SCC 458 (K. S. Bhoopathy & Ors. Vs. Kokila & Ors.). that before granting permission for withdrawal of suit, the Court is duty bound to satisfy itself that proper grounds exist for granting such permission. Merely stating that defendant will not be prejudiced by granting of permission to withdraw is not sufficient compliance with the statutory mandate.

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11.Under the circumstance, this Court does not find any infirmity in the impugned order either rejecting the petition for amendment or the denial of permission to withdraw the suit.

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Civil Miscellaneous Petition, accordingly, stands dismissed with cost. However, the petitioner is at liberty to institute a fresh suit for eviction or title against the parties concerned, will not be prejudiced by this order. Pending I.A., if any, stands disposed of.

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(Gautam Kumar Choudhary, J . )

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Pawan / - Uploaded 11.11.2025

MD Hussain v. MD Hemayun

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MD Hussain v. MD Hemayun

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