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2012 DIGILAW 1535 (PNJ)

Chander v. Mohinder

2012-10-19

L.N.MITTAL

body2012
JUDGMENT L.N. Mittal, J. Aggrieved by order dated 4.10.2012 (Annexure P/4) passed by trial court, plaintiff no. 1 has filed this revision under Article 227 of the Constitution of India to challenge the said order. Petitioner and proforma respondents no. 8 to 12 as plaintiffs have filed suit against respondents no. 1 and 2 as contesting defendants and against proforma respondents no. 3 to 7 as proforma defendants, interalia, seeking declaration that plaintiffs and proforma defendants are owners in possession of the suit land and contesting defendants have no concern therewith. The suit was filed on 1.9.2006. Some time in the year 2012, the plaintiffs sought amendment of plaint to challenge exparte decree dated 16.1.1989 passed in civil suit 723 of 1986 titled Panna versus Mann Singh etc. The said amendment application was dismissed by the trial court vide order dated 5.6.2012. Thereafter the plaintiffs filed application Annexure P/2 for permission to withdraw the suit with liberty to file fresh suit on the same cause of action. Plaintiffs alleged in application Annexure P/2 that while filing affidavit of examination-in-chief of plaintiff no. 1-petitioner Chander, false documents including exparte decrees were traced and therefore, plaintiffs moved application for amendment of plaint after obtaining certified copies of the documents but the amendment application was dismissed. It is further alleged that without aforesaid documents, the suit may fail by reason of some formal defect. The application was resisted by defendants no. 1 and 2 by filing reply Annexure P/3. Learned trial court vide order Annexure P/4 dismissed the application of plaintiffs. Feeling aggrieved, plaintiff no. 1 has filed this revision petition to challenge order Annexure P/4. I have heard counsel for the petitioner and perused the case file. Counsel for the petitioner relying on judgment of this Court in Vinod Kumar versus Gurmail Singh and another, 2012(1) RCR (Civil) 539 contended that application Annexure P/2 could be allowed notwithstanding dismissal of earlier application for amendment of plaint to challenge the same exparte decree. It was also contended that if there is sufficient ground within purview of Order 23 Rule 1(3)of the Code of Civil Procedure (in short, CPC), necessary permission to withdraw the suit with liberty to file fresh suit should be granted. Reliance in support of this contention has been placed on judgment of this Court in Dalbir Kaur versus Jagir Kaur, 2002(2) RCR (Civil) 659. Reliance in support of this contention has been placed on judgment of this Court in Dalbir Kaur versus Jagir Kaur, 2002(2) RCR (Civil) 659. I have carefully considered the aforesaid contentions but I find no force therein keeping in view the facts and circumstances of the instant case. Under Order 23 Rule 1(3) CPC, while granting permission to withdraw the suit with liberty to file fresh suit, court has to be satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to do so. In the instant case, the plaintiffs in their application have not even pleaded that the instant suit 'must' fail by reason of some formal defect. On the contrary, the plaintiffs have simply pleaded that the suit 'may' fail for reason of formal decree. Plaintiffs have taken a very vague and general plea in their application Annexure P/2. Paragraphs no. 2 and 3 of the application are reproduced hereinunder:- “2. That when the false documents including exparte decrees were traced at the time of filing of the affidavit of Chander in the evidence, the plaintiff filed the application for amendment of the plaint mentioning the requisite grounds after obtaining the certified copies of the documents which were enclosed with the application but that application was ordered to be dismissed on 05.06.2012. 3. That without the documents referred above the suit of the plaintiff may fail by reason of some formal defect and, therefore, the plaintiffs want to withdraw the suit to be filed afresh.” From the aforesaid averments, it cannot be ascertained as to what false documents and exparte decrees the plaintiffs are referring to except lease deed dated 16.12.1985 mentioned in paragraph no. 1 of the application. No other document has been mentioned in the entire application. Thus, the plaintiffs have taken very vague and general plea regarding false documents without specifying the documents. Consequently, it cannot be said on the basis of said vague and general assertion that the instant suit would fail on account of some formal defect. In the aforesaid circumstances, judgments in the cases of Vinod Kumar (supra) and Dalbir Kaur (supra) are not applicable to the facts of the instant case. It is also worth mentioning that counsel for the petitioner referred to some exparte decree dated 16.1.1989 passed in suit titled as Panna versus Man Singh etc. In the aforesaid circumstances, judgments in the cases of Vinod Kumar (supra) and Dalbir Kaur (supra) are not applicable to the facts of the instant case. It is also worth mentioning that counsel for the petitioner referred to some exparte decree dated 16.1.1989 passed in suit titled as Panna versus Man Singh etc. as noticed in the impugned order of the trial court. However, reference to the same has also not been made in application Annexure P/2. On the contrary, defendants no. 1 and 2 in preliminary objection no. 5 of their written statement dated 16.9.2008 (as shown by counsel for the petitioner) pleaded that the instant suit is barred by principle of constructive resjudicata as no such plea (as now taken in the instant suit) was taken by the plaintiffs in the earlier case titled Panna Ram etc. versus Man Singh etc. nor question of title was raised in the said case. Counsel for the petitioner contended that exparte decree dated 16.1.1989 sought to be challenged by the plaintiffs has not been passed in the suit mentioned by defendants no. 1 and 2 in their written statement. The plea cannot be accepted because in the written statement, defendants no. 1 and 2 have simply mentioned title of the suit and have not mentioned any date of the decree. Consequently, it cannot be said that aforesaid plea in the written statement does not refer to decree dated 16.1.1989 passed in suit of the same title. There can be no basis for such assertion of the plaintiffs. Moreover, in application Annexure P/2, the plaintiffs did not even refer to decree dated 16.1.1989 much less taking the plea that decree dated 16.1.1989 was not passed in the suit referred to in the aforesaid written statement. In any event, when aforesaid plea was raised by contesting defendants in their written statement in the year 2008, the plaintiffs were put to guard to find out the proceedings of the said suit Panna versus Man Singh etc., but the plaintiffs did not exercise any caution at that stage and rather woke up more than three years thereafter. It is also significant to notice that according to averments in application Annexure P/2, the alleged false documents including exparte decrees were traced at the time of filing of affidavit of Chander petitioner in evidence. It is also significant to notice that according to averments in application Annexure P/2, the alleged false documents including exparte decrees were traced at the time of filing of affidavit of Chander petitioner in evidence. However, it is not explained as to why the said documents were not checked before filing the suit and why the plaintiffs remained silent for more than five years after filing of the suit before seeking amendment of plaint and before moving instant application Annexure P/2. For the reasons aforesaid, I find that the plaintiffs have miserably failed to make out a case within the four corners of Order 23 Rule 1(3) CPC. Plaintiffs have failed to make out any ground to seek permission to withdraw the suit with liberty to file fresh one regarding the same subject matter or on the same cause of action. Therefore, there is no perversity, illegality or jurisdictional error in impugned order of the trial court dismissing application Annexure P/2 moved by the plaintiffs. For the reasons aforesaid, I find no merit in the instant revision petition which is accordingly dismissed in limine.