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2000 DIGILAW 184 (CAL)

DEBASHIS SINGHA ROY v. TARAPADA ROY

2000-04-17

PRABIR KUMAR SAMANTA

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PRABIR KUMAR SAMANTA, J. ( 1 ) THE question involved in this revisional application is whether a partition suit should normally be allowed to be withdrawn with liberty to sue afresh when the plaintiffs alleged that the same suffers from the defect of non-joinder of necessary parties and non-description of the suit lands with particulars as to it's nature, character, boundaries, measurement and areas. ( 2 ) ORDER 23 Rule 1 (3) of the Code is clear in its terms that where a suit must fail by reasons of some formal defects or where 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, there the court may on such terms as it thinks fit permit the plaintiff to withdraw the suit or such part of claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. This rule is disctinct from res judicata and based on public policy of the law to avoid multiplicity of proceedings. This rule is meant to apply in cases where there is defect in form of the suit and because of such defect the suit will fait or where there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. ( 3 ) IN the case in hand the formal defects and/or the other sufficient grounds pointed out by the plaintiffs for the purpose of withdrawal of the suit with a leave to file a fresh suit for the subject matter of the suit are that the description of the nature and character of the lands sought to be partitioned and the actual and correct areas and boundaries thereof were not furnished and necessary and proper parties have not been impleaded and there was misjoinder of cause of action. ( 4 ) THE Division Bench of this court in the case Haridas Sadhukhan v. Giridhar sadhukhan, held in a suit for declaration that certain properties were Debuttar properties and the plaintiff was the sole Shebait and the defendants should be restrained from obstructing the plaintiff in performing the Seba and making repairs to the temple also for recovery of possession of Debuttar properties and for accounts, that the defects referred to namely certain necessary parties were not impleaded and certain Debuttar properties were not included in the claim do not appear to be formal defects. It is not difficult to conceive that omission of a party simpliciter will not always result in dismissal of the suit unless such party is a necessary party. Again the question whether a party is a necessary party or a proper party requires adjudication on the principles established therefor. Similarly the properties that are not included in the suit will not fail the suit but the decision that will be rendered in the suit will not be applicable in those properties which were left out of the suit. Therefore, it is also a determining factor whether the defects in the suit are defects in the form of suit which will also result in dismissal of the suit, before permission is granted to withdraw the suit with leave to sue afresh for the selfsame subject matter of the suit. This is what this court laid down in the decision in the case of Rani Harsh mukti Dassi and Anr. v Sarat Chandra Ata the Single Bench of this court held that the court has no jurisdiction to permit withdrawal of the suit unless there was something to show that the suit must fail by reason of some formal defect. ( 5 ) BUT the Supreme Court in the decision of M/s. Hulas Rai v, KB. Buss and Co. held that the language of Order 23 Rule 1 Sub-Rule (1) of the Code gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-Rule (2) of that Rule. the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under Sub-rule (3) of that Rule. the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under Sub-rule (3) of that Rule. It also laid down that there is no provision in the Code of Civil procedure which requires the court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. ( 6 ) THERE is no conflict whatsoever between the principles laid down by the Calcutta high Court as above and the Supreme Court in the aforesaid decision. The tests as aforesaid laid down by Calcutta High Court will be applicable in cases where such permission to withdraw the suit has been sought for with the leave to sue afresh for the subject matter of that suit but not in cases where no such leave has been prayed for. ( 7 ) THOUGH there is no controversy between the principles as aforesaid but here is a case which is for partition of joint properties amongst the co-sharers. In such a case the plaintiff has prayed for a permission to withdraw the suit with leave to sue afresh on the subject matter of the suit. It is the principle in law that an application to withdraw a suit with liberty must either be allowed or refused in toto. It is not open to the court to grant the prayer for withdrawal and refuse leave. It liberty is refused the suit should not be allowed to be withdrawn but should be retained in the file for trial. Reference may be made in this regard to the decision of this Court in Jyotirmay goswami and Ors, v. Guru Vovinda Goswami and Ors. and the decision of the Madras high Court in T. W. Ranganathan v. T. K. Subramaniam and Ors. . ( 8 ) IN view of the principles as aforesaid the question assumes importance as to whether in respect of a partition suit such permission for withdrawal with leave to sue afresh should necessarily be given because a suit for partition of joint properties will never be barred so long the properties remain joint. . ( 8 ) IN view of the principles as aforesaid the question assumes importance as to whether in respect of a partition suit such permission for withdrawal with leave to sue afresh should necessarily be given because a suit for partition of joint properties will never be barred so long the properties remain joint. This question has to be answered in the negative and for such negative answer it is not also necessary in this case to deal with the alleged defects of the suit for the purpose of consideration whether such defects would result in dismissal of the suit. Because a partition suit is not like all other suits where parties to the suit stand on a different footing. In a partition suit though the parties are arrayed as plaintiffs and defendants, but the defendants also have the right to claim partition in such suit. Since the principle under Order 23 Rule 1 (3) is founded on public policy to prevent institution of suit again and again on the same cause of action so where a partition suit has been filed alleging the defendants as co-sharers with the plaintiffs there the plaintiff or the plaintiffs should not be always and in all circumstances permitted to withdraw such partition suit. Because the defendant or the defendants of such partition suit, subject to the provisions of law would always be entitled to transpose themselves to the category of plaintiffs and plaintiffs to the category of defendants to have the joint properties partitioned and would thus save time and safeguard their lawful interest. This view is drawn from the decision of a Division Bench judgment of Bombay High Court in Tukaram mahadu Tandel v. Ramchandra Mahadu tandel and Ors. It laid down that it is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another. The Supreme Court in r. Ramamurthi Aiyar v. Raja V Rajeswara rao at page 649 observed that the rule enunciated by Crump J in the case of Tukaram mahadu Tandel (supra) has seldom been doubted and there is a large body of judicial opinion to support the same. The Supreme Court in r. Ramamurthi Aiyar v. Raja V Rajeswara rao at page 649 observed that the rule enunciated by Crump J in the case of Tukaram mahadu Tandel (supra) has seldom been doubted and there is a large body of judicial opinion to support the same. It is truly so as would be evident from a later decision of a single Judge of Rajasthan High Court in the case of Manohar Singh v. Mst, Sardar Bai. It held that in a suit for partition of immovable property even the defendants have the same right to claim partition and it is not material as to in what manner the parties are arrayed as plaintiffs or defendants in the suit. Even the defendants can be transposed as plaintiffs and can continue the suit if they feel that the plaintiff is not continuing the suit in their interest. Thus, in such kind of suit no absolute right can be held in favour of the plaintiff of withdrawing a suit under Order 23 Rule 1 of the code. ( 9 ) IN the case in hand the plaintiffs/petitioners filed the suit for partition of alleged joint family properties. The petition for temporary injunction filed by the plaintiffs/petitioners was dismissed by the trial court. Such dismissal of the injunction petition was upheld by the court of appeal. In view of the public policy underlying the order 23 Rule 1 (3) of the Code to prevent institution of suit again and again on same cause of action, even the defendants of this suit may either have the properties in suit partitioned between them and the plaintiffs if such are the joint properties or may establish the same to be their exclusive properties or that the plaintiffs do not have any share therein. In either case the disputes, if there be any, shall be set at rest. The plaintiffs therefore in this case should not be allowed to withdraw the suit with leave to sue afresh on the subject matter of the suit only for the purpose of keeping alive the dispute between the parties, to be reopened at the discretion of the plaintiffs. The plaintiffs therefore in this case should not be allowed to withdraw the suit with leave to sue afresh on the subject matter of the suit only for the purpose of keeping alive the dispute between the parties, to be reopened at the discretion of the plaintiffs. That apart the defects as alleged in the petititon under Order 23 Rule 1 (3) of the Code by the plaintiffs, on the stated principles are not formal defects as either of the parties to the suit may have such defects, removed by making appropriate application in the suit itself. ( 10 ) THUS, in all the views the petition of the plaintiffs under Order 23 Rule 1 (3) for withdrawal of the suit with leave to sue afresh should not be allowed. The learned Trial Court rightly dismissed the application. There is therefore no illegality and/or material irregularity in the exercise of jurisdiction. ( 11 ) THE revisional application therefore should fail and hence dismissed. However, there will be no order as to costs. Revision dismissed.