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2009 DIGILAW 2489 (RAJ)

Ravindra Kumar v. Avinash

2009-12-03

JITENDRA RAY GOYAL

body2009
JUDGMENT Hon'ble GOYAL, J.- This civil revision petition under Section 115 of the Code of Civil Procedure (in short the "Code") has been preferred by the petitioner-plaintiffs against the order dated 10.9.2008 whereby learned Additional Civil Judge (Jr. Div.) No.2, Jaipur City, Jaipur had declined to grant permission to the plaintiffs to withdraw the suit with liberty to file a fresh one. 2. The plaintiff-petitioners filed a suit on 29.3.2008 for permanent injunction against the defendants with a prayer to grant prohibitory injunction in respect of disputed land restraining the defendants to raise any construction thereupon, to stop running of spouts, channels in the eastern wall of the plaintiffs house, to demolish or damage terrace, projection or close windows, ventilators and gates existing in the eastern wall of the house of the plaintiffs. 3. The defendants filed the written statement wherein plea of non-maintainability of the suit without declaration and prayer of possession has also been taken. 4. During the pendency of the suit, two applications for amendment in the plaint have been filed on account of subsequent developments. He also filed an application under Order 23 Rule 3 of the Code whereby prayer has been made for granting permission to withdraw the suit with liberty to file fresh suit on the ground that on account of formal defect and subsequent developments, plaintiffs cannot get adequate relief in the present suit. A reply to this application was filed by the defendants denying any adequate reasons exist for the permission of withdrawal of the suit. 5. The trial Court after hearing the parties dismissed the application filed under Order 23 Rule 3 of the Code vide order dated 10.9.2008 on the premise that object of the suit does not vanish only because temporary injunction application has been dismissed. Aggrieved from that order, this revision petition has' been preferred by the plaintiff-petitioners. 6. Heard learned counsel for the parties and perused and material available on the record. 7. Aggrieved from that order, this revision petition has' been preferred by the plaintiff-petitioners. 6. Heard learned counsel for the parties and perused and material available on the record. 7. It was inter alia contended by the counsel for the plaintiff-petitioners that suit is at the preliminary stage, issues have not been framed yet and during the pendency of the suit the defendants have raised the construction by closing the gates, ventilators and windows and thereby obstructed the plaintiffs' right to have access of light and air in the house causing substantial damage to the plaintiffs and hardship in using the premises, therefore, because of subsequent developments prayer of mandatory injunction has to be incorporated. It has further been submitted that defendants have denied the plaintiffs ownership over the disputed land, therefore, plaintiffs would not get any relief due to formal defect of prayer of declaration and also the subsequent developments occurred during the pendency of the suit. Reliance has been placed upon the judgment delivered in the case of Mangi Lal vs. Suresh Chandra reported in RLW 1984 page 261, wherein permission for withdrawal of the suit with liberty to file fresh suit has been granted observing that words "formal defect" in Order 23 Rule 1 sub-clause (3)(a) presupposes that there is some lapse in draft of the plait on account of which the suit must fail. It has further been held that error made in good faith by the plaintiff is sufficient for invoking the provisions of Order 23 Rule 1 of the Code. 8. It has also been submitted by the counsel for the plaintiff-petitioners that the trial Court has not correctly appreciated the ratio laid down by the Delhi High Court in the case of Damyanti Rani Bakshi vs. Maharaj Kumar Mehta reported in AIR 2004 Delhi 422, wherein it has been held that refusal of permission to withdraw the suit on the ground that alleged formal defect in the plaint, is not proper and the trial Court cannot dictate the manner in which the suit should be prosecuted by directing the plaintiff to carry out the amendments to the plaint. 9. Learned counsel for the respondents contended that trial Court after considering entire aspects of the matter rightly refused the permission for withdrawal of the suit with liberty to file fresh suit. 9. Learned counsel for the respondents contended that trial Court after considering entire aspects of the matter rightly refused the permission for withdrawal of the suit with liberty to file fresh suit. It was then submitted that after rejection of the temporary injunction application, this application came to be filed by the plaintiffs on 5.9.2008. It was then submitted that defect and subsequent developments which have been pointed out by the plaintiffs could be cured and incorporated by necessary amendments in the plaint and in fact plaintiffs had also filed two applications seeking amendment in the plaint and out of which one application for amendment in the plaint has been allowed by the trial Court on 19.5.2009. It was further submitted that plaintiffs cannot be allowed to seek redress of the mistake committed by them by allowing the application for withdrawal of the suit. Reliance has been placed upon the judgment in K.S. Bhoopathy and Others vs. Kokila and Others reported in (2000) 5 Supreme Court Cases 458 = RLW 2001(1) SC 107, wherein it has been held that provision in Order 23 Rule 1 is an exception to the common law and sub-rule (1) grants an absolute liberty to the plaintiff, whereas under sub-rule (3) the Court has discretion to grant leave or not. It was further held that discretion of the court is to be exercised with caution and circumspection and all aspects of the matter are to be examined, including the desirability of otherwise of permitting a fresh round of litigation on a cause of action which has already been agitated. It has further been held that such examination is all the more important where the application under Order 23 Rule 1 (3) is filed at the appeal stage and Court's time already utilized should not be wasted. He also placed reliance upon the judgment in Amritlal Shalikaran Gupta vs. Naresh M. Kantharia and Another reported in (2001) 10 Supreme Court Cases 68, wherein it has been held that High Court in revision has not addressed the legal question involved and erred in granting permission on the condition of payment of cost to the Municipal Corporation for purchasing medicines for hospital. 10. I have considered the rival submissions made at the bar. It is admitted fact that plaintiffs had filed a suit for prohibitory injunction on 29.3.2008 against the defendants. 10. I have considered the rival submissions made at the bar. It is admitted fact that plaintiffs had filed a suit for prohibitory injunction on 29.3.2008 against the defendants. During the pendency of the suit, the defendants have raised construction, thereby closed the windows, ventilators etc. of the plaintiffs house and according to the plaintiffs forcible possession was made by the defendants over the disputed land during pendency of suit. Plaintiffs have filed two application for amendment in the plaint containing the facts of subsequent developments, which ere pending at the time of disposal of this application but during the course of argument it has been pointed out by the counsel for the parties that thereafter on 19.5.2009 on application under Order 6 Rule 17 of the Code seeking amendment in the plaint has been allowed and another application has been refused. In my considered view, it is not sufficient ground for allowing the application for granting permission to withdraw the suit with leave to file a fresh suit merely because one applicant seeking amendment in the plaint has been disallowed or that grant of permission will not prejudice the defendants, but it is the settled proposition of law that Court before grant of such permission to feel satisfied that there exists proper grounds/reasons for granting permission to withdraw the suit with leave to file fresh suit. Here in the case on hand, it has not been made disputed that defendants have raised constructions and thereby changed the nature of the suit property and therefore the relief sought by the plaintiffs is not adequate relief under the changed subsequent developments. It is also true that on account of changed developments and circumstances the plaintiffs have a fresh cause of action but to avoid the multiplicity, they filed the application for withdrawal of the suit with liberty to file fresh one. It is also significant to note that the suit is at a preliminary stage in which issues are yet to be framed, as such no prejudice appears to be caused if permission sought for is granted, in these circumstances and in my considered opinion, the trial Court has erred in rejecting the application merely on the count that dismissal of the temporary injunction application does not mean that suit shall fail on account of formal defect. Therefore, apart from awarding cost there would have been no reason for the court not to grant leave to file a fresh suit on the same cause of action subject to any other legal constraints or impediments. In these circumstances, this revision petition deserves to be accepted. 11. Resultantly, this revision petition is allowed and the impugned order is set aside and the suit is permitted to be withdrawn with leave to institute a fresh suit on the same subject matter, if permissible in law, subject to payment of cost of Rs. 5,000/-.