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2002 DIGILAW 246 (GAU)

Mon Bharan Hazam v. Rati Ram Gore

2002-06-06

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J.— I have heard Mr. S.S. Sharma, learned counsel for the appellant. None appears on behalf of the Respondents despite notice. 2. This Second Appeal has been directed against the impugned Judgment and decree dated 30.4.96 (decree signed on 22.5.96) passed by the then learned Assistant District Judge, Tinsukia dismissing the T.A. No. 12/93 preferred by the plaintiff/ appellant challenging the judgment and decree dated 29.3.93 rendered by the then learned Munsiff No. 1, Tinsukia dismissing Title Suit No. 1/90. 3. Admittedly this appeal is against concurrent findings of the Courts below. Arguing this Second Appeal mainly on the following substantial question of law. "Whether the finding of the learned appellate Court to the effect that the suit filed on 8.1.90 for alleged dis-possession of the plain tiff/appellant in the last week of August/ 1975 was time barred as per provision of Section 64 of the Limitation Act (for short the 'Act'), is perverse and illegal when the suit itself was refiled on the aforesaid date as per order dated 14.8.87 passed by the learned Munsiff who allowed the plaintiff/appellant to withdraw the suit but without granting any liberty to sue afresh in the same cause of action notwithstanding such prayer being made in the application for withdrawal of the suit". Mr. Sharma has stated that initially the Title Suit No. 12/85, re-numbered as Title •Suit 16/86, was filed in 1985 by the plaintiff/appellant against his 'Dispossession in the last week of August, 1975 by the defendant but due to certain defects in the plaint, the plaintiff/appellant preferred an application under Order 23 Rule 1 C.P.C. on 4.6.87 with the prayer -"It is therefore prayed that the plaintiff Petitioner be permitted to withdraw the suit with liberty to sue afresh on the same cause of action to meet the ends of justice". But without recording any liberty being granted to file the suit afresh, the trial court allowed him to withdraw the suit. Thereafter the plaintiff appellant refiled the instant suit on 8.1.90 being numbered as T.S.No. 1/90. According to him, the Courts below committed error of law in dismissing the suit so filed on 8.1.90 holding to be time barred when the trial Court itself allowed to withdraw the said suit on the prayer made by the appellant. Mr. Thereafter the plaintiff appellant refiled the instant suit on 8.1.90 being numbered as T.S.No. 1/90. According to him, the Courts below committed error of law in dismissing the suit so filed on 8.1.90 holding to be time barred when the trial Court itself allowed to withdraw the said suit on the prayer made by the appellant. Mr. Sharma has vehemently argued that non recording of any such liberty as prescribed under order 23 Rule 1 to file fresh suit cannot be a ground for dismissal of the suit being time barred, once suit is allowed to be withdrawn by the Court. It is implied that the appellant has the liberty to institute a fresh suit in respect of same subject matter because there has been no specific order of refusal of liberty to file the fresh suit that too when it is clearly mentioned in the prayer that plaintiff be allowed to withdraw the suit with liberty to sue afresh on the same cause of action to meet the ends of justice. To drive home his submissions, Mr. Sharma has relied a decision of Calcutta High Court reported in AIR 1982 Calcutta 17 (Sukumr Banerjee - vs - Dilip Kumar Sarkar, and ors). In paragraph 5 of the above cited case it was held as follows - "It appear that Title Suit No. 284 of 1977 was permitted to be withdrawn by the learned Munsiff. The plaintiff made a prayer for liberty to bring a fresh suit. No order was given thereon, but that prayer was not refused. In the Bench case of Golam Mahomed v. Shibendra reported in (1908JILR 35 Cal 990 at p.995, it has been stated that when the plaintiff files an application to withdraw from the suit with liberty to sue afresh, on which an order was passed on the same date giving permission to withdraw the suit and although nothing was said in that order as to the plaintiffs liberty to institute a fresh suit on the same cause of action, that order ought to be read along with the application on which it was passed. It has already been indicated that prayer was not refused. It has already been indicated that prayer was not refused. Hence it is held that order has the effect of granting permission to the plaintiff with liberty to sue afresh on the same cause of action" 4.1 fully agree with the view expressed in Sukumar Banerjee's case (supra) and accordingly I am inclined to approve the submission advance on behalf of the appellant. As per order 23 Rule, 1 .C.P.C the plaintiff may be permitted to withdraw the suit with a liberty to institute a fresh suit in respect of the same subject matter which clearly shows that liberty to file a suit is a requirement under the said provision. Therefore an application to withdraw a suit with liberty must either be allowed or refused in toto. In fact, it is not permissible for the Court of grant the prayer for withdrawal and refuse the leave. But if the Court allows to withdraw the suit on the prayer of the plaintiff without granting any liberty to file the fresh suit, in my considered opinion, would not debar the plaintiff to file the suit afresh provided the Court does not refuse specifically such prayer of granting liberty at the time of allowing to withdraw the suit where leave is granted but liberty to bring suit is not recorded in terms, the order should be construed along with the Petition. It can be implied from the order read with the application on which the order was passed. Therefore it may be safely held that the plaintiff can file a suit fresh though no liberty is granted at the time of permitting to withdraw. Such order permitting to withdraw shall have the effect of allowing leave to the plaintiff with liberty to file the suit afresh on the same subject matter. So in the instant case, there is no bar for the plaintiff/appellant to file a fresh suit. 5. But the instant case projects a different story. The original suit was filed in the year 1985 against dis-possession of the appellant in 1975. According to the provision of Section 64 of the Act the limitation period for filing such suit is only for 12 years. The appellant preferred an application for withdrawal on 4.6.87 which was granted by the learned Munsiff on 14.8.87 allowing the appellant to withdraw the suit. According to the provision of Section 64 of the Act the limitation period for filing such suit is only for 12 years. The appellant preferred an application for withdrawal on 4.6.87 which was granted by the learned Munsiff on 14.8.87 allowing the appellant to withdraw the suit. But neither any liberty was granted to institute a fresh suit nor the prayer for such liberty was rejected. The fresh suit being T.S 1/90 was filed only on 8.1.90 after a lapse of about 3 years of such permission. But interestingly such delay in filing of this suit in 1990 has not been explained. So any such liberty though may be treated as implied, cannot be for any indefinite time beyond the period of limitation. The plaintiff must be very diligent and vigilant in filing the fresh suit within the limitation period. Once it is permitted to withdraw. But in the instant case, the present suit was admittedly filed after three years of such leave of withdrawal. The present suit being for dispossession of the plaintiff/appellant in 1975 was filed in 1990 beyond the period of limitation i.e. 12 years as per Section 64 of the Act. 6. In view of such situation and upon hearing the learned counsel for the appellant I do not find any wrong being committed by the Courts below in dismissing the suit of the appellant as being time barred and in my opinion the impugned judgment need no interference of this Court. 7. Consequently this appeal fails. No costs.