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2003 DIGILAW 55 (HP)

JMAN SUKH v. JAGDISH CHAND

2003-03-21

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—The petition arises out of the judgment of the learned District Judge, Kinnaur at Rampur dated 24th May, 2000. 2. In order to appreciate the controversy, few facts may be noticed: Plaintiff-appellant Jagdish Chand filed a suit for declaration and permanent injunction seeking declaration that only approach to his house, located on Khasra No. 3611 in village Khunn of Tehsil Ani in the District of Kullu, is through the fields of the defendant and other villagers. The path, it was claimed, is about 2-1/2 feet in breadth. It was the case of the plaintiff that he and his predecessor-in-interest had been using this path openly, peacefully and continuously without any interruption and as a matter of right for the last more than 100 years. In the alternative, plaintiff claimed customary right to pass through the fields of the defendant. Plaintiff sought restraint on the defendant from causing any obstruction over the path, as claimed by the plaintiff through the fields of the defendant. 3. The suit was resisted by the defendant. The allegations were controverted. Several preliminary objections were taken. On merits, defendant claimed that there was no path in existence through land of the defendant as claimed by the plaintiff. A specific objection was taken that the plaintiff has not mentioned the Khasra number of the field over which such a path exists. Defendant pleaded that he has raised an apple orchard on the land over which plaintiff claims path. According to the defendant, plaintiff has a passage to his house from a path through a "Nallah". 4. Learned trial Court, after the trial of the suit, found that one of the plaintiff witnesses admitted that there was an alternative path available to the plaintiff which is also being used for the cattle. This witness admitted that the defendant has raised plants on the land on which the plaintiff claim path. He was categorical in his evidence that the path as claimed by the plaintiff passes under the fields of the defendant. 5. Learned trial Judge noticed that in the evidence produced by the plaintiff in terms of the Certificate of the Patwari Ex. PW-1A, there is some path shown, but Khasra number is not mentioned. From evidence, learned trial Judge concluded that plaintiff was the owner in possession of Khasra No. 3611, whereas defendant was owner of Khasra Nos. 3612 and 3615. Learned trial Judge noticed that in the evidence produced by the plaintiff in terms of the Certificate of the Patwari Ex. PW-1A, there is some path shown, but Khasra number is not mentioned. From evidence, learned trial Judge concluded that plaintiff was the owner in possession of Khasra No. 3611, whereas defendant was owner of Khasra Nos. 3612 and 3615. There was no entry in the revenue record to show the existence of any path through the land of the defendant comprising in Khasra Nos. 3612 and 3615. Learned trial Court, after appreciating the evidence, held that the plaintiff has failed to prove the existence of any path through the fields of the defendant. Learned trial Court took note of the fact that the plaintiff did not produce any evidence to justify his claim for customary right of passage through the fields of the defendant. Dealing with the question of easement by necessity, learned trial Judge held that there was an alternate path to the house of the plaintiff as noticed earlier. The suit of the plaintiff was dismissed. 6. Dis-satisfied, plaintiff carried an appeal before the learned District Judge. The case was listed for arguments on two or three occasions. In the meanwhile, an application under Order 23 Rule 1 of the Code of Civil Procedure was filed by the plaintiff-appellant to withdraw the suit with permission, "to file a fresh suit on the same cause of action". This application was allowed by the learned District Judge by his impugned judgment holding: "The appeal of the plaintiff is allowed. The judgment and decree under appeal is set aside. The suit instituted by the plaintiff is permitted to be withdrawn by him with liberty reserved in his favour to institute fresh suit on the same cause of action subject to payment of Rs. 500 as costs". Aggrieved, the defendant is in this petition. 7. I have heard Mr. H.K. Bhardwaj, learned Counsel for the petitioner, and Mr. Ajay Mohan Goel, learned Counsel for the respondent. 8. Mr. 500 as costs". Aggrieved, the defendant is in this petition. 7. I have heard Mr. H.K. Bhardwaj, learned Counsel for the petitioner, and Mr. Ajay Mohan Goel, learned Counsel for the respondent. 8. Mr. Bhardwaj strenuously urges that sub-rule (3) of Rule-1 of Order 23 of the Code of Civil Procedure contemplates the withdrawal of the suit by plaintiff with permission to institute a fresh suit for the same subject-matter or part of the claim which is sought to be withdrawn, provided there is a formal defect in the suit and for that reason the suit is liable to be dismissed or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject-matter. In the present case, contends Mr. Bhardwaj, there was no formal defect for which suit would fail. 9. Relying upon Tarachand Bapuchand v. Gaibihaji Ahmed Bagwan, AIR 1956 Bombay 632, Mr. Bhardwaj submits that failure to make a proper claim or implead party or produce appropriate evidence cannot be said to be a formal defect or which may be described as fatal to the suit within the meaning of Order 23 Rule 1(3) of the Code. True it is. A defect which goes to the merit of the case cannot be said to be a formal defect for the purposes of Order 23 Rule 1(3) of the Code. A plaintiff cannot be allowed to withdraw a suit when he has failed to adduce appropriate evidence in the suit and when he knows that his suit is bound to fail for want of proof. 10. Mr. Goel, on the other hand, submits that the present case may not fall within the meaning of formal defect, but the grounds pleaded by the plaintiff are sufficient for allowing the plaintiff to withdraw the suit and institute a fresh suit for the same subject-matter as contemplated under Rule l(3)(b) of Order 23 of the Code. 11. Referring to Daulat Ram v. Smt. Janki Devi and others, 1995 (1) Sim. LC. 132, Mr. Goel contends that it is not necessary that there should be a formal defect in the suit for its withdrawal. The plaintiff can be permitted to withdraw the suit with permission to bring another suit on the same subject matter if there are sufficient grounds which need not be ejusdem generis to the formal defect. LC. 132, Mr. Goel contends that it is not necessary that there should be a formal defect in the suit for its withdrawal. The plaintiff can be permitted to withdraw the suit with permission to bring another suit on the same subject matter if there are sufficient grounds which need not be ejusdem generis to the formal defect. In other words those grounds need not be analogous to formal defect. There can be no dispute with the argument raised by Mr. Goel. The question nevertheless arises whether in the present case those grounds exist or are made out by the plaintiff which are sufficient to permit the plaintiff to withdraw the suit and institute a fresh suit for the same subject matter. 12. Plaintiff, in my view, cannot be permitted to take shelter behind this provision, after prolonged litigation, on the realisation of the weakness of his case on merits. I find substance in the contention of Mr. Bhardwaj that finding serious lacunae in his case, the plaintiff resorted to this provision to prolong the agony of the defendant. As pointed out in Chander and others v. Gulzari Lal and others, 1979 The Punjab Law Reporter, 637, the mere inability of the plaintiff to produce the relevant record or to adduce the adequate evidence to substantiate its claim cannot be a good or sufficient reason for instituting a fresh suit, on the same subject matter. Even a lapse on the part of the plaintiff to fully describe the suit land, in itself does not warrant the grant of permission to file a fresh suit. Learned District Judge in his impugned judgment has failed to pinpoint either a formal defect or sufficient grounds on which liberty could be granted to the plaintiff to institute a fresh suit. 13. Mr. Goel then contended that Khumb Dass (DW-2), one of the witnesses of the defendant, in his evidence stated that there was no path from the land of the defendant to the house of the plaintiff which passes through the fields No. 3615 and 3613. Khumb Dass, admittedly, is co-owner in respect of these two fields alongwith the defendant-and therefore it was necessary to add Khumb Dass as defendant to the suit and if he is added as defendant then the suit will have to be tried denovo. In these circumstances impresses, Mr. Khumb Dass, admittedly, is co-owner in respect of these two fields alongwith the defendant-and therefore it was necessary to add Khumb Dass as defendant to the suit and if he is added as defendant then the suit will have to be tried denovo. In these circumstances impresses, Mr. Goel, it would only be appropriate if plaintiff was permitted to institute a fresh suit. The contention is mis-placed and cannot be accepted. Admittedly, when the suit was filed, the plaintiff had no grievance against Khum Dass. It was only when he was examined as witness, the plaintiff came to know that Khumb Dass also objects to his passing through these two fields. In such a situation, by no stretch, it can be said that cause of action would be same in both the cases. Cause of action in such a situation, so far Khumb Dass is concerned, only arose when he denied the existence of such path on the two fields. 14. In the facts and circumstances of the present case, learned District Judge was not right in allowing the application of the plaintiff for the withdrawal of the suit with permission to file a fresh suit on the same subject matter. 15. No other point is urged. 16. In result, I allow the petition. The judgment of the learned District Judge, dated 24th May, 2000 is set aside. The case shall go back to the learned District Judge, Kannuar at Rampur, who, after hearing the parties, shall decide the appeal, on merits, in accordance with law. 17. The order in this revision petition would not be in the way of the plaintiff to withdraw the suit unconditionally. 18. The parties are directed to appear before the learned District Judge, Kinnaur at Rampur on 30th April, 2003. The record of the case shall be remitted back to the learned District Judge immediately. Petition allowed.