The Madhya Pradesh High Court has clarified a critical procedural principle under the Code of Civil Procedure: a fresh appeal filed prior to the withdrawal of a defective appeal is not barred by Order 23 Rule 1 CPC, even if the earlier appeal is later dismissed as withdrawn. This ruling reinforces the distinction between procedural defects and substantive bar, ensuring litigants are not penalized for good faith attempts to pursue remedies.
Background & Facts
The Dispute
The dispute arises from the appointment of an Executive Trustee of the Omkareshwar Temple Public Trust under the Madhya Pradesh Public Trusts Act, 1951. The appellant, Rao Devendra Singh (deceased), through his working trustee, challenged the order dated 24.11.2025 passed by the Second Additional District Judge, Khandwa, which appointed Rao Pushpendra Singh as Executive Trustee and dismissed the appellant’s application under Section 26(2) of the Act. The appellant contended that he was the rightful candidate for the position and that the order was legally flawed.
Key Facts
- The appellant filed an application under Section 26(2) of the M.P. Public Trusts Act, 1951, seeking appointment as Executive Trustee.
- The District Judge dismissed the application on 24.11.2025, holding that the appellant had no established right to the position and appointing Rao Pushpendra Singh instead.
- On 26.11.2025, the appellant filed M.A. No. 9547/2025 before the High Court challenging the order.
- On 08.12.2025, the appellant filed the present appeal, M.A. No. 9896/2025, against the same order.
- M.A. No. 9547/2025 was defective due to insufficient court fee and was never listed or heard.
- On 05.01.2026, the appellant applied for withdrawal of M.A. No. 9547/2025, disclosing the pendency of M.A. No. 9896/2025 in Para 12 of the appeal.
- The High Court allowed the withdrawal of M.A. No. 9547/2025 on 05.01.2026, dismissing it as withdrawn without granting express liberty to file a fresh appeal.
- The respondent No. 3 objected to the maintainability of M.A. No. 9896/2025 on grounds of parallel proceedings and alleged suppression.
Procedural History
- 24.11.2025: Order passed by Second Additional District Judge, Khandwa, dismissing appellant’s application and appointing respondent No. 3 as Executive Trustee.
- 26.11.2025: M.A. No. 9547/2025 filed before the High Court.
- 08.12.2025: Present appeal, M.A. No. 9896/2025, filed before the High Court.
- 05.01.2026: Application for withdrawal of M.A. No. 9547/2025 allowed; appeal dismissed as withdrawn.
- 15.01.2026: Respondent No. 3 filed I.A. No. 4398/2026 challenging maintainability of M.A. No. 9896/2025.
- 22.02.2026: Appellant filed I.A. No. 1175/2026 seeking conversion of M.A. No. 9896/2025 into a first appeal under Chapter 2 Rule 8(8) of the M.P. High Court Rules, 2008.
- 05.05.2026: Judgment pronounced by Justice Ratnesh Chandra Singh Bisen.
The Parties' Positions
For the Appellant
The appellant argued that M.A. No. 9547/2025 was defective, never properly instituted, and never adjudicated. He disclosed its pendency in the present appeal, demonstrating bona fides. He relied on Vimlesh Kumari Kulshrestha v. Sambhajirao and other precedents to argue that Order 23 Rule 1 CPC does not bar a suit or appeal filed before the withdrawal of a prior one.
For the Respondent
The respondent contended that two appeals on the same cause of action could not be maintained simultaneously. He argued that since M.A. No. 9547/2025 was withdrawn without liberty to file afresh, the present appeal was barred under Order 23 Rule 1(4) CPC. He cited Surguja Transport Service v. State Transport Appellate Tribunal, Channappa v. Parvatewwa, and K.K. Modi v. K.N. Modi to support the principle of finality and prevention of abuse of process.
Relief Sought
The appellant sought: (1) dismissal of the respondent’s preliminary objection on maintainability; (2) conversion of M.A. No. 9896/2025 into a first appeal under the M.P. Public Trusts Act, 1951; and (3) adjudication of the substantive appeal on merits.
The Legal Issue
Whether the filing of a fresh appeal under Order 43 Rule 1(r) CPC before the withdrawal of a defective appeal bars the fresh appeal under Order 23 Rule 1(4) of the Code of Civil Procedure, when the earlier appeal was never heard and was withdrawn solely due to a procedural defect.
Arguments Presented
For the Appellant
The appellant relied on Vimlesh Kumari Kulshrestha v. Sambhajirao (2008) 5 SCC 58, which held that Order 23 Rule 1 CPC applies only when a subsequent suit is filed after withdrawal of the first. He emphasized that M.A. No. 9896/2025 was filed on 08.12.2025, prior to the withdrawal of M.A. No. 9547/2025 on 05.01.2026. He cited Mangi Lal v. Radha Mohan (AIR 1930 Lah 599), P.A. Muhammed v. Canara Bank (AIR 1992 Ker 85), and Girdhari Lal Bansal v. Chairman, Bhakra Beas Management Board (AIR 1985 P&H 219) to establish that the rule does not apply to suits or appeals filed before withdrawal. He further argued that the court’s order permitting withdrawal, coupled with the appellant’s full disclosure, impliedly granted liberty to proceed with the existing appeal.
For the Respondent
The respondent contended that Order 23 Rule 1 CPC prohibits multiple proceedings on the same cause of action. He argued that since M.A. No. 9547/2025 was withdrawn without express liberty, the present appeal was a prohibited second attempt. He relied on Surguja Transport Service v. State Transport Appellate Tribunal (1987) 1 SCC 5, Channappa v. Parvatewwa (2026 SCC Online SC 552), and K.K. Modi v. K.N. Modi (AIR 1998 SC 1297) to assert that the principle of finality and prevention of abuse of process must prevail. He claimed the appellant concealed the pendency of the earlier appeal, though this was contradicted by the appellant’s disclosure in Para 12.
The Court's Analysis
The Court undertook a detailed analysis of Order 23 Rule 1 CPC, emphasizing its limited scope. The provision governs withdrawal of a suit or part of a claim with liberty to file a fresh suit - but only when the fresh suit is instituted after the withdrawal of the first. The Court held that the rule has no application where the second proceeding is already pending at the time of withdrawal.
"Order 23 Rule 1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits."
The Court noted that M.A. No. 9896/2025 was filed on 08.12.2025, while M.A. No. 9547/2025 was filed on 26.11.2025 and withdrawn only on 05.01.2026. The second appeal was therefore not a "fresh suit" within the meaning of the rule. The Court further observed that the withdrawal of M.A. No. 9547/2025 was due to a formal defect - insufficient court fee - and not on merits. The appellant had disclosed the pendency of the second appeal, and the respondent had not objected to the disclosure but only to costs.
The Court relied on Hari Basudev v. State of Orissa (AIR 2000 Ori 125) and Mulla’s Code of Civil Procedure to hold that liberty to file a fresh suit need not be express; it may be implied from the conduct of the parties and the court’s order. The respondent’s acceptance of costs ordered by the court, coupled with the appellant’s transparency, supported an inference of implied liberty.
The Court distinguished the judgments cited by the respondent, noting that Surguja Transport Service, Channappa, and K.K. Modi dealt with subsequent proceedings initiated after final adjudication or withdrawal, and involved issues of res judicata or abuse of process - none of which applied here.
The Verdict
The appeal was held to be maintainable. The Court rejected I.A. No. 4398/2026 filed by respondent No. 3 challenging maintainability. The Court allowed I.A. No. 1175/2026, converting M.A. No. 9896/2025 into a first appeal under Chapter 2 Rule 8(8) of the M.P. High Court Rules, 2008. The matter was directed to be listed before an appropriate bench for adjudication on merits. No costs were awarded.
What This Means For Similar Cases
Fresh Proceedings Filed Before Withdrawal Are Not Barred
- Practitioners may file a new appeal or suit before withdrawing a defective one without violating Order 23 Rule 1 CPC.
- The rule only applies prospectively - it does not invalidate proceedings already pending.
- This protects litigants from being penalized for procedural errors in initial filings.
Implied Liberty May Be Inferred from Conduct
- Courts may infer permission to file afresh from the totality of circumstances, including disclosure, court’s order, and party conduct.
- Silence or acceptance of costs by the opposing party may support an implied grant of liberty.
- Drafters of withdrawal applications should explicitly state the existence of parallel proceedings to strengthen the inference.
Procedural Defects Do Not Trigger Finality Rules
- Withdrawals based on formal defects (e.g., court fee, jurisdictional irregularity) do not trigger res judicata or abuse of process doctrines.
- Courts must distinguish between substantive finality and procedural irregularity when assessing maintainability.
- This judgment reinforces judicial economy by allowing correction of defects without forcing litigants to abandon valid claims.
