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2010 DIGILAW 1399 (CAL)

Krishna Bahety v. Sukhpal Singh

2010-12-03

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. BY the impugned order being no. 13 dated 16th June, 2010 passed by the Ld. Judge, 12th Bench, City Civil Court at Calcutta in T.S. No. 2300 of 2009, two applications filed by the respective parties were disposed of by the Learned Trial Judge. BY the first part of the said order, the plaintiffs prayer for withdrawal of the suit with liberty to sue afresh on the self same cause of action, was allowed by the Learned Trial Judge. BY the latter part of the impugned order the defendants application for reference under Section 340 of the Criminal Procedure Code was rejected by the Learned Trial Judge. Since this part of the impugned order is appealable under Section 341 of the Criminal Procedure Code, the defendant does not want to challenge the said part of the impugned order before this Court. Leave has been sought for permitting the defendant to file an appeal for challenging this part of the impugned order before the appropriate forum. In my view no such leave is necessary for challenging this part of the impugned order before the appropriate forum. It is thus made clear that the order which is passed herein, will not affect the defendants right to challenge that part of the impugned order before the appropriate forum. 2. MR. Ghosh, learned Advocate appearing for the petitioner, very candidly submitted before this Court that he would restrict his submission with regard to the propriety of the first part of the impugned order by which the plaintiffs prayer for withdrawal of the suit with liberty to sue afresh, was allowed by the Learned Trial Judge. Heard Mr. Ghosh, learned Advocate for the petitioner and Mr. Roy, learned Advocate for the opposite party. Considered the materials on record including the order impugned. Let me now consider as to how far the Learned Trail Judge was justified in passing the impugned order in the facts of the instant case. 3. THE plaintiff filed the said suit inter alia praying for a decree of permanent injunction for restraining the defendant nos. Considered the materials on record including the order impugned. Let me now consider as to how far the Learned Trail Judge was justified in passing the impugned order in the facts of the instant case. 3. THE plaintiff filed the said suit inter alia praying for a decree of permanent injunction for restraining the defendant nos. 1 to 4 and each of them their men, agents and servants from dispossessing the plaintiff from his tenancy described in schedule A, B and C of the plaint without due process of law and from interfering and/or obstructing with the use and enjoyment thereof by the plaintiff on/or from disturbing smooth running of the business therein by the plaintiff. 4. THE said suit was filed on the basis of the cause of action allegedly arose on 18- 04-2009, 25-04-2009 and 28-04-2009. The plaintiff claimed that the initial threat to dispossess the plaintiff was given by the defendant no.4 claiming to be the transferee owner who sent one Dilip Barik to the plaintiff for demanding one lakh rupees as a condition for granting rent receipt in favour of the plaintiff. It was further stated therein that on 25-04-2009 the plaintiff approached the defendant no.4 to give inspection of the documents of his title, if any, but the said defendant flatly refused. It was further stated therein that the defendant nos. 1 to 3 being approached, refused to entertain the plaintiff by stating that the defendant no.4 is a very dangerous man and if the amount asked by him is not paid, the plaintiff may be dispossessed from his tenancy. It was further stated therein that the defendant nos. 1 to 4 in collusion and conspiracy with each other, hatched out a plan to dispossess the plaintiff from the suit property and an attempt was made by them in this regard on 28-04-2009, but they were unsuccessful. Since they threatened the plaintiff by saying that they would come again to dispossess him, the instant suit was filed. The plaint was duly verified by the plaintiff and the same was also supported by the affidavit. The above statements constituting the cause of action of the said suit was verified and affirmed by the plaintiff as true to his knowledge. Subsequently the plaintiff filed an application for temporary injunction claiming interim protection in the suit on the self-same allegation. The plaint was duly verified by the plaintiff and the same was also supported by the affidavit. The above statements constituting the cause of action of the said suit was verified and affirmed by the plaintiff as true to his knowledge. Subsequently the plaintiff filed an application for temporary injunction claiming interim protection in the suit on the self-same allegation. The defendant contested the plaintiffs said application by stating that the allegation made by the plaintiff in the said injunction application were baseless, untrue, speculative and misleading. It was disclosed in the said affidavit that the defendant nos. 2, 3, 5, 6 and 7 died long before the filing of the suit. As such the allegations made against them as aforesaid, are absolutely misleading and speculative. 5. IN this scenario the defendant filed an application under Section 340 of the Criminal Procedure Code for a reference against the plaintiff for misleading the court by making false statement on affidavit. The plaintiff, under such circumstances, filed an application seeking leave to withdraw the said suit with liberty to sue afresh as there are formal defects in the plaint. 6. THE Learned Trial Judge was pleased to allow the plaintiffs such prayer by the impugned order by holding inter alia that it was not possible for a party to know every information about the defendants at the time of filing of the suit and if for want of some information, some incorrect statements are made, the plaintiff may be permitted to withdraw the said suit with liberty to sue afresh whenever such error in such statements in the plaint are discovered. The Learned Trial Judge thus held that under such circumstances, Court cannot resist the plaintiff from withdrawing the suit with liberty to sue afresh. The said order is under challenge under Article 227 of the Constitution of India at the instance of the defendant/petitioner. Let me now consider the merit of this application in the facts of the instant case. 7. IT is not a case where the plaintiff simply wanted to withdraw his suit and/or abandon any part of his claim as per Order 23 Rule 1 Sub-Rule 1 of the Civil Procedure Code. Let me now consider the merit of this application in the facts of the instant case. 7. IT is not a case where the plaintiff simply wanted to withdraw his suit and/or abandon any part of his claim as per Order 23 Rule 1 Sub-Rule 1 of the Civil Procedure Code. Here is the case where the plaintiff wanted to withdraw the suit due to some formal defect in it for which the suit must fail, with liberty to sue afresh on the self same cause of action as per Order 23 Rule 1 Sub-Rule 3 of the Code of Civil Procedure. As such the court cannot grant such relief to the plaintiff unless the Court is satisfied about the proof of the pre-conditions mentioned in Sub-Rule 3 of the Rule 1 of Order 23 of Civil Procedure Code. 8. ON reading the pleadings of the plaint, this Court is unable to form an opinion that the plaintiff made certain vague allegations against some of the defendants for want of proper information about them. ON the contrary this Court finds that the plaintiff was very much assertive in his contention regarding the threat given by some of the defendants viz. defendant Nos. 1 to 4 on 18/04/2009, 25/04/2009 and 28/04/2009 which formed part of the cause of action of the said suit and those statements were affirmed by the plaintiff as true to his knowledge and as such subsequently the plaintiff cannot say that those statements were made by him for want of his knowledge about the same. As a matter of fact the allegations which were made against the defendant nos. 2, 3, 5, 6 and 7 which constituted the cause of action of the said suit, were all speculative and misleading as those defendants were no more available in the world as on the date when they allegedly threatened the plaintiff to disposes him from the suit premises. In my view those misleading allegations were made with a definite intention to obtain certain ex parte interim order in the said suit by misleading the Court. This Court, thus, is unable to agree with the Learned Trial Judge that those statements were made by the plaintiff very innocently. 9. FURTHERMORE, the defects which were pointed out by the plaintiff in the suit cannot be regarded as a formal defect for which the suit must fail. This Court, thus, is unable to agree with the Learned Trial Judge that those statements were made by the plaintiff very innocently. 9. FURTHERMORE, the defects which were pointed out by the plaintiff in the suit cannot be regarded as a formal defect for which the suit must fail. In my view any defect which is curable by amendment of plaint, cannot be regarded as formal defect in the plaint. Since these defects can be removed by amendment, the plaintiff cannot be permitted to withdraw the suit with liberty to sue afresh. 10. SINCE this Court is of the view that the plaintiff in fact wanted to withdraw the said suit for avoiding his liability for being punished under the law for making an attempt to obtain certain illegal order by misleading the Court, the Learned Trial Judge ought not to have permitted the plaintiff to withdraw the said suit with liberty to sue afresh. The plaintiffs said application is a mala fide application. As such the said application should have been rejected, as the explanation which was given by the plaintiff regarding his lack of knowledge for making such untrue statement in the plaint is not at al acceptable. Accordingly, the impugned order stands set aside. The plaintiffs application for leave to withdraw the suit with liberty to sue afresh, stands rejected. The revisional application is thus allowed. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.