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2006 DIGILAW 101 (CAL)

Balaram Thapa v. Himadri Builders Limited

2006-02-21

S.P.TALUKDAR

body2006
Judgment :- (1) THE present application under section 115 of the Code of Civil Procedure is directed against the order dated 09. 8. 2006 passed by the learned Civil judge, Junior Division, Jalpaiguri in Title Suit No. 205 of 2004. (2) LEARNED Court by the said order allowed an application filed by the opposite party/plaintiff under Order 23 Rule 1 [sub-rule (3) (a) and (b)] of the code of Civil Procedure thereby allowing the plaintiff/petitioner to withdraw the suit with liberty to sue afresh. Being aggrieved by such order, Mr. Basu appearing as learned Counsel for the petitioners submits that the learned court failed to appreciate the matter in its proper perspective and there could be no scope nor any justification for allowing such prayer for withdrawal with leave to sue afresh. In this context, Mr. Basu has invited attention of this Court to the earlier prayer for amendment of the plaint as was made by the opposite party/plaintiff and according to Mr. Basu, the said prayer for amendment having been rejected, the opposite party/plaintiff, in a roundabout manner, has sought to seek redress. According to Mr. Basu, the ground as mentioned in the application for such withdrawal of the suit with leave to sue afresh cannot be said to any formal defect within the scope and meaning of Order 23 Rule 1 [sub-rule (3) (a) and (b) of the Code]. (3) IN response to this, learned Counsel for the opposite party refers to a decision in a case of Narain vs. Rewati, reported in AIR 2004 Punjab and Haryana 275. The said case, however, relates to an application for withdrawal of the suit with liberty to file fresh suit to set up plea of misrepresentation or fraud. The said decision does not seem to have any application to the facts and circumstances of the present case. (4) REFERENCE was made to the decision in the case of Certificate Officer vs. Kasturi Chand Malu and Anr. reported in AIR 1970 Orissa 239. That was in the context of want of notice under section 80 of the Code of Civil procedure which the learned Court considered to be a formal defect so as to enable the plaintiff to withdraw a suit with liberty to sue afresh. reported in AIR 1970 Orissa 239. That was in the context of want of notice under section 80 of the Code of Civil procedure which the learned Court considered to be a formal defect so as to enable the plaintiff to withdraw a suit with liberty to sue afresh. Here, in the present case also the petitioner has taken such a plea that in view of the changed position, it is perhaps necessary for the petitioner/plaintiff to implead the State or other authority as defendant in the suit. In that event, it may be necessary for the petitioner/plaintiff to serve notice under section 80 of the Code of Civil Procedure. (5) MR. Basu appearing as learned Counsel for the petitioners, however, submits that if Union Board is to be made a party, question of not serving notice under section 80 of the Civil Procedure Code can hardly arise. I think any further discussion in this regard will virtually amount to putting the cart before the horse. Having regard to the averments made in the application praying for withdrawal, it cannot be said that the petitioner does not intend to implead the State as a defendant in the suit and in that event, certainly the question of service of notice under section 80 of the Code of Civil procedure will arise. (6) LEARNED Counsel for the opposite party/plaintiff has further referred to a decision in the case of Homeo Dr. T.K. Prabhawti vs. C.P. Kunhathabi umma and Ors. reported in AIR 1981 Kerala 170. Learned Court in the said case observed that failure of the plaintiff to sue on the strength of title is also sufficient grounds under clause (b) of Order 23 Rule 1 sub-rule (3). (7) REFERENCE was also made to a Single Bench decision of Gauhati High court in the case of Union of India and Anr. vs. Monoranjan Banik, reported in AIR 1976 Gauhati 1. In the said case, learned Court on the basis of facts of the suit allowed withdrawal as it was held that the facts as stated in the suit became infructuous and as such, the case required to be withdrawn with leave to file a fresh suit for compensation. vs. Monoranjan Banik, reported in AIR 1976 Gauhati 1. In the said case, learned Court on the basis of facts of the suit allowed withdrawal as it was held that the facts as stated in the suit became infructuous and as such, the case required to be withdrawn with leave to file a fresh suit for compensation. (8) IN the present case, the present opposite party as plaintiff no doubt filed an application for amendment whereby a claim of title of adverse possession was sought to be introduced and such prayer was turned down by the learned Court. It is also admitted that the said order was not sought to be assailed by the present opposite party/plaintiff. (9) CONSIDERING the application under Order 23 Rule 1 sub-rule (3) which was filed before the learned Trial Court, it is necessary to find out how far the grounds as stated therein can be brought within the scope and meaning of formal defect. One of the grounds stated in the application was that the opposite party/plaintiff came to learn that a portion of the disputed property was subsequently taken over by the State and thereafter, was given to Union board/ Jalpaiguri Municipality. According to the opposite party/plaintiff, this fact was not within the knowledge of the plaintiff at the time of the institution of the suit and in that event, there is need for impleading the State or the said authority in whose favour the property had reportedly been allowed to be impleaded as defendant in the suit. Question of service of notice under section 80 of the Civil Procedure Code in such changed situation can also certainly arise. But it is not for this Court to decide as to how far such application is at all necessary. Grounds also include the point that there is need for praying for declaration of title as well as recovery of possession -though the suit was originally filed for injunction. I do think that such proposed introduction of the prayer for declaration of title and recovery of possession-that too, arising out of the plaintiff coming to learn about a portion of the land being taken over by the State of West Bengal is anything but formal in nature. If such a prayer is allowed, consequently question will arise as regards valuation of the property. If such a prayer is allowed, consequently question will arise as regards valuation of the property. This has to be taken care of by the present petitioners/defendants and all such defects cannot be said to be something beyond the scope of formal defect within the meaning under order 23 Rule 1 sub-rule (3) of the Code of Civil Procedure. It is also necessary to mention in this context that Order 23 Rule 1 sub-rule (3) (b) goes a step further and it permits withdrawal of a suit with leave to sue afresh in case there are other sufficient reasons. ************** where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh for the subject-matter of a suit or a part of claim, it can certainly grant the plaintiff permission to withdraw from such suit. (10) IN the present case, after due consideration of relevant facts and materials, this Court is inclined to hold that the opposite party/plaintiff could certainly make out sufficient so as to entitle the plaintiff to withdraw the suit with leave to file afresh. (11) IN such view, I am unable to appreciate the grievances ventilated by the petitioners herein and the present application stands disposed of with the aforesaid observations. (12) IT may be worth mentioning that during the pendency of the present revisional application, the opposite party/plaintiff filed a fresh suit and in the said suit, the present petitioner was made a defendant. According to the learned Counsel for the opposite party/plaintiff, the defendant in the meanwhile reportedly transferred the property in favour of another and the said transferee has already been impleaded as defendant. All these facts, however, do not seem to have any direct bearing in deciding the matter before this Court. There will, however, be no order as to costs.