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2012 DIGILAW 1393 (BOM)

Reena Ramesh Shirodkar v. Ulhas Dattaram Mayekar

2012-07-27

A.P.LAVANDE

body2012
Judgment : Heard Mr. Rohit Bras De Sa, learned Advocate for the petitioner and Mr. P. S. Rao, learned Advocate for the respondent. 2. By this Writ Petition the petitioner challenges order dated 7.4.2012 passed by Civil Judge, Senior Division, Mapusa in Regular Civil Suit No. 60/2012/A by which application dated 5.3.2012 filed by the petitioner to withdraw the suit with liberty to institute a fresh suit has been dismissed. The petitioner is a plaintiff in the above suit filed for mandatory and permanent injunction against the respondent/defendant. After the defendant filed written statement, the plaintiff filed above application seeking to withdraw the suit with liberty to file a fresh suit on the ground that there were formal defects in the plaint and also on the ground that there was sufficient cause. 3. The application was opposed by the defendant. 4. By an impugned order learned Judge has dismissed the application primarily on the ground that certain facts which have not been pleaded by the plaintiff can be pleaded by way of amendment instead of withdrawing the suit and filling a fresh suit. Learned Judge further held that at this stage plaintiff could not have been allowed to withdraw the suit on the ground stated in the application. 5. Mr. De Sa, learned counsel for the petitioner/plaintiff submitted that learned Judge has not exercised jurisdiction as required in terms of Order XXIII, Rule 1 of C.P.C. Learned Counsel further submitted that the learned Judge has not addressed herself to the question as to whether the suit must fail by reason of formal defects or there was sufficient ground for allowing the plaintiff to institute a fresh suit. Learned Counsel further submitted that the impugned order is liable to be quashed and set aside. 6. Mr. Rao, learned Counsel appearing for the respondent submitted that although the impugned order is not properly worded basic requirements of Order XXII, Rule 1 of C.P.C. have been met and as such, no interference is warranted in the impugned order. 7. Having considered the rival submissions and having perused the record, I am of the considered opinion that the impugned order is liable to be set aside and matter remanded to the learned Judge for fresh decision. 8. 7. Having considered the rival submissions and having perused the record, I am of the considered opinion that the impugned order is liable to be set aside and matter remanded to the learned Judge for fresh decision. 8. Order XXIII, Rule 1 sub-rule (3) reads thus:- (3) Where the court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff the permission to withdraw from such suit or such part of the claim with liberty to file a fresh suit in respect of the subject-matter of such suit or such part of the claim. 9. Bare perusal of sub-rule (3) of Rule 1 Order XXIII of C.P.C. discloses that when a plaintiff seeks withdrawal of a suit with liberty to file fresh suit on the ground that suit must fail by formal defects or there are sufficient grounds for allowing the plaintiff to institute a fresh suit, the Judge is expected to address himself/herself to the pleadings in the plaint and arrive at a finding as to whether the case set up by the plaintiff for seeking withdrawal of a suit with liberty to file fresh suit is borne out on the touch stone on the predicates provided under sub rule (3) of Rule 1 Order XXIII of C.P.C. This exercise has obviously, not been done by the learned Judge while passing the impugned order. On this short ground alone, the impugned order is unsustainable in law and as such liable to be set aside. 10. For the reasons aforesaid, the impugned order dated 7.4.2012 passed by learned Civil Judge, Senior Division, Mapusa, in Regular Civil Suit No. 60/2012/A is quashed and set aside and the learned Judge is directed to decide the application dated 5.3.2012 filed by the plaintiff afresh in the light of the observations made above. 11. Needless to mention that I have not expressed any opinion on the rival contentions of the parties and the learned Judge is expected to decide the application on its own merits and in accordance with law. 12. Rule is made absolute in aforesaid terms with no order as to costs.