Madhya Pradesh High Court
Rao Devendra Singh S/O Rao Shobhagy ... vs Shri Omkareshwar Temple Public Trust on 5 May, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:34767
1 MA-9896-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
ON THE 5 th OF MAY, 2026
MISC. APPEAL No. 9896 of 2025
RAO DEVENDRA SINGH S/O RAO SHOBHAGY SINGH ( DEAD)
WORKING TRUSTEE SHRI OMKARESHWAR PUNLIC TRUST SH
Versus
SHRI OMKARESHWAR TEMPLE PUBLIC TRUST AND OTHERS
Appearance:
Shri Vivek Tankha- Senior Advocate (through VC) with Shri Siddharth
Shukla - Advocate for the appellant.
Shri Yatharth Chandrashekhar - Advocate and Shri Arpit Kumar Oswal -
Advocate for respondent No.3.
Heard on : 31.03.2026
Pronounced on : 05.05.2026
ORDER
The present appeal has been filed under Order 43 Rule 1 (r) of CPC by the appellant challenging the order dated 24-11-2025, passed by the Second Additional District Judge, Khandwa under Section 27 of the M.P. Public Trust Act, 1951 (for short, the Act of 1951) whereby the application filed by the appellant under Section 26(2) of the Act of 1951 has been dismissed saying that the respondent No. 3, Rao Pushpendra Singh is qualified and suitable to be appointed as the Executive Trustee of the Omkareshwar Temple Trust. It is further held that since the applicant, Rao Vinay Pratap Singh, has no established right to be appointed as the Executive Trustee, the application under Section 26(2) of the Madhya Pradesh Public Trusts Act, Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53 NEUTRAL CITATION NO. 2026:MPHC-JBP:34767 2 MA-9896-2025 1951, is dismissed. Accordingly, Respondent No. 3, Rao Pushpendra Singh, is appointed as the Executive/Managing Trustee of the Omkareshwar Temple Trust.
2. Learned counsel for the respondent No.3 has raised an objection regarding maintainability of the appeal saying that when this appeal had been filed already M.A. No. 9547/2025 was pending before the Court, therefore two appeals cannot be filed at the same time regarding the same cause of action. He has also raised objection that during the pendency of M.A. No. 9547/2025, the appellant, without withdrawing the earlier appeal and without seeking any leave of the court instituted the present appeal being M.A. No. 9896/2025, challenging the same order dated 24.11.2025. Thus, two parallel appeals arising out of the same cause action and impugned orders were kept pending simultaneously before this court. Vide order dated 05.01.2026 passed in M.A. No. 9547/2025, this Court permitted withdrawal of the appeal, but did not grant any liberty to file a fresh appeal. The order clearly records that the appeal is dismissed as withdrawn and no liberty was granted either expressly or by necessary implication. Therefore, the appeal is not maintainable under the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, 1908.
3. In reply to the application filed by respondent No.3 raising preliminary objection regarding maintainability of the appeal, counsel for the appellant submits that the preliminary objections are misconceived, factually incorrect, and liable to be dismissed. He submits that M.A. No. 9547/2025 remained defective, was never cured, listed, or considered by this Hon'ble Court, and Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53 NEUTRAL CITATION NO. 2026:MPHC-JBP:34767 3 MA-9896-2025 hence was not a validly instituted proceeding and the present M.A. No. 9896/2025 is the only properly instituted and pursued appeal. He disclosed the earlier defective appeal in Para 12 of the present appeal, evidencing full transparency and bona fides. According to him, the allegations of suppression or parallel proceedings are therefore baseless. The appellant has also taken steps to withdraw the earlier defective appeal to avoid any technical objection. He, therefore, submits that the preliminary objections deserve rejection. The earlier appeal i.e. M.A. No. 9547/2025 was defective and withdrawn on 05.01.2026, while the present appeal was filed prior thereto. In support of his contention, he has placed reliance on Vimlesh Kumari Kulshrestha Vs. Sambhajirao and another (2008) 5 SCC 58, which clarifies that subsequent proceedings are not barred and liberty to file afresh may be inferred upon withdrawal. He, therefore, prays that the application filed by the respondent regarding maintainability of this appeal be rejected.
4. Submission of the both parties were considered.
5. On perusal of order dated 05.01.2026, it is clear that appellant had filed an application for withdrawal of M.A. No. 9547/2025 that another M.A. has been filed on behalf of same appellant against the same order. Due to the aforesaid, IA.No.26775/2025 was allowed in regarding M.A. No. 9547/2025 and on the basis of withdrawal of M.A. No. 9547/2025 is dismissed as withdrawn.
6. It is also appropriate to mention here that appellant has mentioned in detail in para 12 of Appeal No. 9896 of 2025, in regarding the filing of miscellaneous appeal no. 9547 of 2025. Therefore, respondent's argument Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53 NEUTRAL CITATION NO. 2026:MPHC-JBP:34767 4 MA-9896-2025 that Appellant has concealed the fact of filing miscellaneous appeal number 954/2025 is not acceptable.
7. As far as argument on behalf of the respondent that this court has not given any liberty to file a fresh appeal. there is no force in this argument because M.A. No. 9896 of of 2025 is already in existence, therefore, there is no meaning to grant liberty to file a fresh appeal. In this regard, the principle propounded by the Hon'ble Supreme Court in the case of Vimlesh Kumari Kulshrestha (supra) is worth considering which is as follow:-
"8. Order 23 Rule 1 CPC stricto sensu, therefore, was not applicable, the relevant provision whereof reads thus:
"1. Withdrawal of suit or abandonment of part of claim.--(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
*** (2) *** (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."
9. Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the respondent in regard to payment of proper court fee. We, therefore, are of the opinion that Order 23 Rule 1 of the Code was not applicable to the facts and circumstances of the present case.
10. A somewhat similar question came up for Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53 NEUTRAL CITATION NO. 2026:MPHC-JBP:34767 5 MA-9896-2025 consideration in Mangi Lal v. Radha Mohan [AIR 1930 Lah 599(2)] wherein it was held:
"Order 23 Rule 1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. 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."
11. The said view was followed by the Kerala High Court in P.A. Muhammed v. Canara Bank [AIR 1992 Ker 85]
12. An identical view was also taken in Girdhari Lal Bansal v. Chairman, Bhakra Beas Management Board [AIR 1985 P&H 219] wherein it was held:
"4. ... The earlier application was filed on 6- 10-1982 and the present application was fixed on 26-10-1982 and the first application was withdrawn vide order dated 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or overruled. The aforesaid two Lahore decisions clearly say that if second suit is filed before the first suit is withdrawn then Order 23 CPC is not attracted and the second suit cannot be dismissed under Order 23 Rule 1(4) of the Civil Procedure Code. Accordingly, I reverse the decision of the trial court and hold that the present petition was not barred under Order 23 CPC."
13. We agree with said views of the High Courts.
14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. The respondent, therefore, was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53 NEUTRAL CITATION NO. 2026:MPHC-JBP:34767 6 MA-9896-2025 objection was accepted by the learned trial court. The respondent even accepted the costs as directed by the court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the order passed by the court. It is trite that even a presumption of implied grant can be drawn.
15. In Hari Basudev v. State of Orissa [AIR 2000 Ori 125] a Division Bench of the Orissa High Court held:
"7. As already indicated, the cause of action accrued to Opposite Party 4 to file the election dispute under Section 30 of the Act only after publication of the result of the election. Opposite Party 4 in his petition made out a case for grant of permission to withdraw MJC No. 14 of 1997. He had also stated in the petition that he reserved his right to file a fresh case, if necessary. The learned Civil Judge having permitted him to withdraw the said case, we are inclined to hold that permission to institute a fresh case in the circumstances was impliedly granted."
16. In Mulla's Code of Civil Procedure, 17th Edn., p. 674, it is stated:
"(g) Permission need not be express.--The permission mentioned in this section need not be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the court had also granted liberty to institute fresh suit, the subsequent suit would be barred. Thus, in a case, the Delhi High Court held that the words 'without prejudice to the right of plaintiff' endorsed on the application for withdrawal would only Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53 NEUTRAL CITATION NO. 2026:MPHC-JBP:34767 7 MA-9896-2025 mean that the suit was sought to be withdrawn as compromised and not on merits.
An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit.' 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 applicant."
17. For the reasons aforementioned, we are of the opinion that the High Court was not correct in applying the provisions contained in Order 23 Rule 1 of the Code of Civil Procedure in the facts and circumstances of the case."
8. As far as Rule 1(4)is concerned, it is prohibited from filling a new suit This does not apply to a suit which has already been filed. In this case, the appeal has already filed on 08.12.2025 and that this appeal has been filed before withdrawal of M.A. No. 9547/2025. It would also be appropriate to mention here that M.A. No. 9547/2025 had been filed on 26.11.2025 while this appeal has been filed on 08.12.2025.
9. As far as the judgements relied by counsel for the respondents in case of Surguja Transport Service Vs. State Transport Appellate Tribunal (1987)1 SCC 5, Channappa (D) through LRs Vs. Parvatewwa (D) through LRs 2026 SCC Online SC 552 & K.K. Modi Vs. K.N. Modi, AIR 1998 SC 1297 are concerned, they are not applicable due to the different facts and the circumstances of this case because these judgments deal with subsequent proceedings initiated after termination or final adjudication of earlier proceedings, and they are related to principles of finality, resjudicata, or Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53 NEUTRAL CITATION NO. 2026:MPHC-JBP:34767 8 MA-9896-2025 withdrawal rules. On the other hand, K.K. Modi judgment (supra) holds prevention of abuse of judicial process where multiple remedies were sought across different forum. The judgments referred by the respondents do not apply in the said appeal to challenge its maintainability and hence the present appeal is held to be maintainable.
10. Accordingly I.A. No. 4398/2026 filed on behalf of respondent No.3 regarding maintainability of the appeal is hereby rejected.
11. So far as I.A. No. 1175/2026, an application under section 151 of the CPC for conversion of this miscellaneous appeal into first appeal is concerned, it is relevant to mention here that in terms of Chapter 2 Rule 8(8) of the M.P. High Court Rules, 2008, against the impugned order/decree passed under section 27(3) of the M.P. Trust Act, 1951, a first appeal would lie to the High court.
12. In view of the aforesaid, this application, being IA No. 1175/2026 is allowed and the present miscellaneous appeal is permitted to be converted into the category of a first appeal and be listed before an appropriate bench. Registry to take necessary steps in this regard.
13. Appeal is accordingly disposed of.
(RATNESH CHANDRA SINGH BISEN) JUDGE Rao Signature Not Verified Signed by: SATYA SAI RAO Signing time: 06-05-2026 16:01:53