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Rajasthan High Court · body

2009 DIGILAW 600 (RAJ)

Lalchand Meena v. Prem Kumari

2009-02-25

G.K.TIWARI

body2009
Judgment TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned order dated 10.4.08 of Sub-Divisional Officer Jaipur who had rejected the application filed under Order 23 Rule 1 of the Civil Procedure Code (C.P.C.). 2. Briefly stated, the facts leading to the revision are that the petitioner along with others had filed a suit under sections 88 and 188 of the Act in the court of Sub-Divisional Officer Jaipur. During pendency of the suit after having filed rejoinder to the written statement the petitioner filed an application under Order 23 Rule1 of the C.P.C. for withdrawal of the suit with permission to file a fresh suit. Sub-Divisional Officer by his impugned order dated 10.4.08 rejected the application, aggrieved against which this revision is filed. 3. I have heard the learned counsels in this regard. 4. The learned counsel for the petitioner has pleaded that he is seeking withdrawal of the suit with permission to file a new sit in light of various judgments and pronouncements made by Hon'ble High Courts and Supreme Court in this regard. It is contended that plea of uninterrupted peaceful adverse possession has not been specifically stated in his plaint by the petitioner-plaintiff and some of transferees of the suit land could not be impleaded. In view of this formal defect the trial Court should have allowed the application under Order 23 Rule 1 of the C.P.C. but trial Court illegally and erroneously rejected the application. This has deprived the petitioner in making good formal defect left by him in plaint. As such the impugned order of the Sub-Divisional Officer should be quashed and the petitioner should be allowed to withdraw the suit with permission to file a new suit. 5. Vehemently opposing the contentions of the petitioner, the learned counsel for the non-petitioners has contended that the petitioner has put up a rejoinder to the written statement of the defendants. Not satisfied with this he now wants to withdraw the suit with permission to file a new suit. The petitioner cannot be allowed to file a new suit in light of alleged various pronouncements of Hon'ble High Courts and Supreme Court. Not satisfied with this he now wants to withdraw the suit with permission to file a new suit. The petitioner cannot be allowed to file a new suit in light of alleged various pronouncements of Hon'ble High Courts and Supreme Court. Having learnt the facts in the written statement and alleged unspecified pronouncements of the Hon'ble High Court and Supreme Court the petitioner cannot be allowed to file new suit taking wrong advantage of the facts put up by the non-petitioners-defendants. The petitioner is free to amend his plaint or implead other persons whom he thinks as necessary parties to the suit under provisions of Order 6 Rule 17 and Order 1 Rule 10 of the Civil Procedure Code (C.P.C.). But he cannot be allowed to file a new suit; however he is free to withdraw the suit unconditionally. There is nothing wrong and illegal in the impugned judgment of Sub-Divisional Officer which should be upheld. 6. I have given thoughtful consideration to the rival contentions, perused the impugned judgment dated 10.4.08 of Sub-Divisional Officer and gone through the record available on the file. 7. Perusal of the application filed under Order 23 Rule 1 of the CPC reveals that the petitioner-plaintiff wants to withdraw the suit with permission to file a new suit in light of various judgments and pronouncements made by Hon'ble High Court and Hon'ble Supreme Court; though no specific judgments or pronouncements have been cited in this regard. Other pleas taken are about specific mention of uninterrupted adverse possession on the land and impleading of some transferees of the disputed land. Perusal of the plaint and rejoinder of the petitioner-plaintiff shows that he has already made specific averment of uninterrupted alleged 45 years adverse possession on the disputed land. For impleading alleged transferees to the suit there is specific provision under Order 1 Rule 10 of the CPC. There is also provision under Order 6 Rule 17 of the C.P.C. for amendment of the plaint, if necessary. The petitioner is free to take recourse to these provisions of the CPC for carrying out amendments in his pleadings. For impleading alleged transferees to the suit there is specific provision under Order 1 Rule 10 of the CPC. There is also provision under Order 6 Rule 17 of the C.P.C. for amendment of the plaint, if necessary. The petitioner is free to take recourse to these provisions of the CPC for carrying out amendments in his pleadings. As far as his contention of filing a fresh suit in light of various pronouncements of Hon'ble High Court and Supreme Court are concerned, the petitioner has not specifically mentioned the specific pro-nouncement and specific judgment of Hon'ble High Court or Supreme Court in light of which he wants to file a fresh suit withdrawing the suit already filed. All the pleas and pretext taken by the petitioner as mentioned above do not fall within the category of a formal defect in the plaint as envisaged under Order 23 Rule 3 of the CPC. It would not be out of place to mention here that provisions of Order 23 Rule 1 of the CPC cannot be allowed to be used as ploy to manoeuvre and manipulate pleadings by withdrawing the suit and filing a new suit instead from the vantage point of having learnt defence of the non-petitioners/defendants and alleged pronouncements of Hon'ble Apex Court and various Hon'ble High Courts. This would not only prolong litigation but also manifestly amount to abuse of provisions of law to the detriment of the party which has revealed its defence through written statement. 8. In view of the aforesaid discussion, I do not find any infirmity in the impugned order of the learned Sub-Divisional Officer Jaipur who has neither committed any jurisdictional error nor any illegality nor any material irregularity in passing the impugned order dated 10.4.08. As such the revision is without force. 9. Resultantly, the revision is dismissed. Pronounced.