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2000 DIGILAW 443 (KAR)

MUDDIAH v. CHOWDAIAH

2000-06-30

T.N.VALLINAYAGAM

body2000
VALLINAYAGAM, J. ( 1 ) THIS Revision Petition is preferred against the order passed on i. A. 12 in O. S. 184/94 passed by the Prl. Civil Judge (Jr. Dn.) madhugiri dated 3. 12. 1998. It appears that the petitioner was the plaintiff in the suit and he filed an application under order 23 Rule 1 (3) seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action in respect of the same subject matter. ( 2 ) IT was alleged that the suit property has been acquired through a sale deed from the defendant and a pale of adverse possession also taken. It is also averred by the plaintiff that the defendant has taken up the contention that the had retained some portion of the suit property sold to the plaintiff and the concerned Gram Panchayath is also a necessary party as the plaintiff felt that the amendment is to include the Gram Panchayath or to make the plaint amended to cure the defect pointed out would cause delay and complication and therefore the application came to be filed. ( 3 ) IN the objection filed by the defendant, it was claimed that as per the sale deed dated 20. 1. 1982 (wrongly typed as 1992 in the order copy), the plaintiff is entitled to enjoy the portion purchased by him and not the portion retained by the defendant. It is also alleged that the formal defect can be cured by way of amendment and impleading the parties. On the basis of the respective contentions, the trial Court has chosen to reject the application holding that the points pleaded by the plaintiff cannot be termed as technical or formal defect. Therefore, no permission could be granted. ( 4 ) FEELING aggrieved by this order, the plaintiff has come forward with the above revision, contending that in view of the discovery the entries made in the panchayath records regarding ownership of the disputed property, the plaintiff has chosen to with draw the suit but to file a comprehensive suit impleading the panchayth as a party. It was also further contended that even prior to the date of purchase the suit property had been in his possession and enjoyment and thereafter the plaintiff also in possession of the suit property. It was also further contended that even prior to the date of purchase the suit property had been in his possession and enjoyment and thereafter the plaintiff also in possession of the suit property. The reason withdrawal was that the discovery of the endorsement given by the village panchayath on 17. 7. 1994 stating that the very property was granted to the father of the plaintiff. As this document was not available at the time of filing of the suit and the plaintiff being illiterate person, went to the extent of purchasing the very property which has been granted to his father nearly 60 years ago by the Gram panchayath. Therefore, filing of the fresh suit is necessary for the purpose of establishing the rights. ( 5 ) MR. Hanumatharayappa appearing for the respondent would contend that such a plea cannot be granted. He relied upon the dictum of the. Supreme Court in M/s HULAS RAI BAIJ NATH vs firm K. B. BASS AND CO; and also AMALGAMATED electricity CO. LTD vs KUTUBUDDIN RAJESAHEB CHANCHA and OTHERS. ( 6 ) HEARD the respective Counsel. ( 7 ) ORDER 23 Rule 1 (3), after amendment, reads as follows: "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 ciaim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. " in particular Order 23 Rule 3 (b) contemplates only terms to be fixed. The words are "it may on such terms as it think fit. " in particular Order 23 Rule 3 (b) contemplates only terms to be fixed. The words are "it may on such terms as it think fit. " The supreme Court had an occasion to consider the purport of the said rule in the above cited decision in M/s. O HULAS RAI BAIJ NATH vs firm K. B. BASS and CO; whether the Apex Court has observed as follows:"the language of Order 23, Rule 1, sub-Rule (1), C. P. C. , 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 the 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. 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. it is, of course, possible that different consideration may arise where a set off may have been claimed under order 8. C. P. C. , or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. " ( 8 ) THE above ruling makes it clear that an unqualified right is conferred upon the plaintiff to withdraw the suit and if permission is sought to file a fresh suit, the plaintiff is liable to pay the cost. The supreme Court reiterated that there is no provision in the C. P. C. to compel the Court to refuse permission to withdraw the suit and direct the plaintiff to proceed with the same, the above dictum of the supreme Court was followed by this Court in AMALGATED electricity CO. LTD. , vs KUTUBUDDIN RAJESAHEB CHANCHA and OTHERS wherein this Court has held as follows:"it appears to me that principles are to be derived or gathered from the fact that the absolute right if withdrawal with liberty to file a fresh suit on the same cause of action are treated as two distinct and different matters by Rule 1 of Order 23. The first one, file preserving liberty to a plaintiff to withdraw his suit, visits him with certain consequences set out in sub-rule (3 ). The first one, file preserving liberty to a plaintiff to withdraw his suit, visits him with certain consequences set out in sub-rule (3 ). It is only if a plaintiff wishes to escape those consequences that he is required to comply with the terms of sub-rule (2 ). The said rule vests a power in the Court to decide whether, in the circumstances slated, the plaintiff should be relieved of adverse consequences following upon a formal defect or upon circumstances arising out of proceedings, and permitted to file a fresh suit. Whereas a choice made by the plaintiff under sub rule (1) may be immuned from any obstruction being placed in its exercise either by the opposing party or by the Court itself, an attempt to withdraw the suit with liberty to approach the Court again is expressly made subject to the Court being satisfied as to the particular set out in sub rule (2 ). On principle there fore an application by a plaintiff under sub rule (2) cannot be treated on a par with an application by him to exercise the absolute liberty given to him under sub rule (1); it is actually a prayer for a concession from the Court after satisfying the Court regarding the existence of circumstances justifying the grant of such concession. If so, it is like any other application, a prayer which is capable of being withdrawn before it is granted or refused. If an application under sub-rule (2) is heard on merits and at the conclusion the Court is not satisfied that circumstances exist justifying the grant of permission to withdraw with liberty to file a fresh suit, the Court could proceed to dismiss the application, in which case the suit remains on file. If such is the consequence of an actual adverse order made by the Court on an application, i do not think the plaintiff can be placed in a worse situation by stating that the application must be regarded as one under sub-rule (1) and therefore, in capable of being withdrawn, or has having the immediate result of withdrawing the suit. It will be seen that in such an event, the plaintiff, not only loses the right of filing, fresh suit but also loses even the possibility of getting such relief as he may be in a position to get in the existing suit. It will be seen that in such an event, the plaintiff, not only loses the right of filing, fresh suit but also loses even the possibility of getting such relief as he may be in a position to get in the existing suit. I do not think, an interpretation which leads to such a consequence should be readily accepted. " ( 9 ) IN the light of the dictum mentioned above, I do not think it is proper for the Court below to have rejected the application under order 23 Rule 1 (3) and refuse to grant permission to file a fresh suit on the same cause of action. Even on merits, I find that the plaintiff's discovery of the fact which is not within his knowledge is the reason for asking for the withdrawal. Another point made out by the plaintiff was that the impleading of the Gram Panchayath is essential. In fact, there has been no serious objection in the counter statement filed by the respondent. The respondent himself suggested that the plaint would be amended to include any further relief or pleading and the concerned panchayath would be impleaded. Instead of doing that, the plaintiff wants to have a comprehensive suit tobe filed impleading the panchayath and asking for correct prayer after putting forth the facts discovered by his subsequent to filing of the suit. In these circumstances, there can be no impediment for granting the relief as prayed for to file a fresh suit, but it shall be subject to the terms. ( 10 ) I feel a sum of Rs. 500 shall be reasonable cost and I direct that such cost shall be paid to the Counsel appearing for the respondent. On such payment and on filing a memo for having paid the cost, the CRP shall stand allowed and the suit shall stand dismissed as withdrawn with liberty to file a fresh suit on the same case of action. --- *** --- .