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2008 DIGILAW 1014 (ORI)

SUBHADRA NAYAK v. SHANTILATA BHUTIA

2008-11-12

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - This is an application under Article 227 of the Constitution of India challenging the order dated 26.3.2006 passed by the learned Civil Judge (Junior Division), Bhubaneswar in Title Suit No. 209 of 2004 allowing the application filed by the Plaintiff under Order 23, Rule 1 of the CPC to withdraw the suit and permitting her to file a fresh suit. 2. The facts leading to the case are as follows: Opposite party No. 1 being the Plaintiff filed Title Suit No. 209 of 2004 before the learned Civil Judge (Junior Division), Bhubanewar for declaration that suit Plot No. 1122 may be declared as public road, to set aside the order passed by the Consolidation Authority as well as the Settlement Authority as illegal and for impleading the present Petitioners as Defendant Nos. 1 and 2, State as Defendant No. 4, along with the Consolidation and Settlement Authority as other Defendants. In the said suit, the Defendants appeared and filed their written statement. In course of the trial, the Plaintiff as well as Defendants led evidence from their respective sides. While the matter stood thus, the Plaintiff filed an application under Order 23, Rule 1, CPC (vide Annexure-1) for withdrawal of the suit with liberty to file afresh suit without explaining what prejudice was caused to her and what was the technical lacunae which required her to withdraw the suit after 12 years of its filing. The present Petitioners filed their objection to the said application (vide Annexure-2). The case was taken up before the Loak Adalat. The court below without considering the objection of the Petitioners only held that "the Plaintiff does not want to proceed with this suit due to filing of fresh suit" and allowed the application under Order 23, Rules 1 and 2, CPC subject to payment of cost of Rs. 100/-. The suit was permitted to be withdrawn and leave granted to the Plaintiff to file a fresh suit. 3. Learned Counsel for the Petitioners submitted that an application under Order 23, Rule 1, CPC is to be considered with caution and circumspection as it contains the mandate of the court to institute a fresh suit for the same claim or part of the claim on the same cause of action. 3. Learned Counsel for the Petitioners submitted that an application under Order 23, Rule 1, CPC is to be considered with caution and circumspection as it contains the mandate of the court to institute a fresh suit for the same claim or part of the claim on the same cause of action. Therefore, the person, who wants to get that -mandate, must satisfy the court about the sufficiency of the reasons for such mandate to institute a fresh suit. Here, the Plaintiff has not given any reason whatsoever in the application under Order 23 Rule 1, CPC and without assigning any reason, the court below should not have allowed the application for withdrawal of the suit. As the order was passed in the Lok Adalat, the Petitioners having no other alternative efficacious remedy for redressal of their grievance, have invoked the jurisdiction of this Court under Article 227 of the Constitution of India. 4. In support of his contention, he cited a decision reported in Sitaram ' Mahendra Ghosh and Others Vs. Sri Antaryami Mohapatra and Others and Others, wherein this Court discussed the scope of Section 115 of the CPC after the Amendment Act No. 46 of 1999. 5. There is no dispute that after the amendment came into force in July, 2002. The scope of a revision u/s 115 of the CPC is limited and to invoke the jurisdiction u/s 115 of the CPC the Petitioner has to satisfy that by the impugned order the case is decided finally. Even if the impugned order comes within the category of case decided, he has to further satisfy that if the impugned order would not have been passed in his favour then "the suit or other proceeding" would have stood disposed of finally. 6. In the present case, had the Petitioners' objection been allowed, the suit would not have come to an end. Rather, the Plaintiff would have continued the suit. As the permission sought by the Plaintiff to withdraw the suit was allowed by the trial court, the Petitioners are not entitled to invoke the jurisdiction under Article 227 of the Constitution of India is the only remedy. 7. This Court perused the application under Order 23, Rules 1 and 2, Code of Civil Procedure, objection thereto and the impugned order. 7. This Court perused the application under Order 23, Rules 1 and 2, Code of Civil Procedure, objection thereto and the impugned order. The impugned order is a cryptic one and it contains only one paragraph wherein the learned Civil Judge (Junior Division) has observed as follows: since the Plaintiff does not want to proceed with this suit due to filing of fresh suit, the petition is allowed subject to cost of Rs. 100/-. The suit is hereby withdrawn accordingly. The Plaintiff is permitted to file the fresh suit as against Defendants at her own interest. Note in the suit register. 8. From the above order, it is clear that the court below has not assigned any reason whatsoever for granting permission to the Plaintiff to withdraw the suit. The settled position of law is that it is appropriate to permit withdrawal of the suit with a liberty to me a fresh suit for declaration of title which ought to have been done at the initial stage. By withdrawal, the Defendants should not be deprived of the benefit of the long pending proceeding. In the present case, the suit was pending for last 12 years. The approach of the court below is erroneous. He has not assigned any reason while directing the Plaintiff to withdraw the suit and imposed the cost. It is the duty of the court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit by the Plaintiff with leave to file fresh suit. In case such permission is granted, it will not prejudice the Defendant. 9. However, admittedly the Plaintiff has already filed another suit, i.e., C.S. No. 96 of 2006 and notice was sufficient on the Defendants-petitioners. The Petitioner did not plead anything regarding prejudice caused to them. They only suffered the delay of twelve years in defending the earlier suit. Therefore, to render substantial justice without violating fair-play, this Court is not inclined to interfere with the impugned order passed by the learned Civil Judge (Junior Division), Bhubaneswar. of course, the Defendant-petitioners are entitled to get more cost for the delay. Therefore, while dismissing the writ application, the cost awarded by the court below for the withdrawal of the suit is enhanced to Rs. of course, the Defendant-petitioners are entitled to get more cost for the delay. Therefore, while dismissing the writ application, the cost awarded by the court below for the withdrawal of the suit is enhanced to Rs. 1,000/- (rupees one thousand) which shall be paid to the Petitioners by the opposite party No. 1-plaintiff in the C.S. No. 96 of 2006 within a period of four weeks from the date of disposal of this writ application and on production of a certified copy of this order.