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2012 DIGILAW 897 (HP)

Baldev Chand v. Gorkh Ram

2012-11-29

DEV DARSHAN SUD

body2012
Judgment Dev Darshan Sud, J. The petitioner challenges the order passed by the learned Civil Judge (Junior Division), Barsar, District Hamirpur, on an application under Order 23 Rule 1(3)(a)(b) read with Section 151 of the Code of Civil Procedure (hereinafter referred to as `CPC’) for permission to withdraw the suit instituted by him. The application was dismissed on 15.5.2012. 2. The petitioner-plaintiff challenges this order by way of present revision inter alia on the pleadings that the learned trial Court has not exercised its jurisdiction in accordance with law and that the application should and ought to have been allowed according to the settled law. 3. What was pleaded before the learned trial Court is that there is a `formal material defect’ in the suit as the plaintiff omitted to file suit for the whole land and the suit has only been instituted with respect to one Khasra Number of 1/6th share only out of the whole suit land which is an act of inadvertence and a bonafide mistake. The tatima should and ought to have been filed and that the suit was vague. These are the pleadings in paras 2 and 3 of the application, copy of which has been placed on the record of this case. 4. The application was opposed by the respondents where one of the pleadings was that the so called defect can be cured by filing application under Order 6 Rule 17 CPC. It was stated that the defect is not formal and that no permission can be granted to institute the suit. 5. From the pleadings what I find is that another objection which has been taken by the defendant is that the suit is barred in terms of Explanation-VI to Section 11 of the CPC as the controversy already stands adjudicated in another suit interse between the parties. 6. The question with respect to the principles governing grant of permission under Order 23, Rule 1(3)(b) CPC was considered by the Supreme Court in K.S. Bhoopathy and Others vs. Kokila and Others, (2000)5 SCC 458 , wherein the Court held:- “10. Order XXIII, Rule 1, C.P.C. makes provisions for withdrawal of suit or abandonment of part of claim. … … … … … … … … … … … … … … … … … … … … … … … … … … … 13. Order XXIII, Rule 1, C.P.C. makes provisions for withdrawal of suit or abandonment of part of claim. … … … … … … … … … … … … … … … … … … … … … … … … … … … 13. The provision in Order XXIII, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, first where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases. 14. In Bakhtawar Singh v. Sada Kaur, (1996) 11 SCC 167 the question of grant of permission under Clause (3) of Order XXIII Rule 1 of the C.P.C. was considered wherein it was held (SCC Headnote): "In the present case all the Courts below including the High Court concurrently found that the plaintiffs/appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter. The plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. The plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs/appellants in accordance with the provisions of Clause (3) of Order 23, Rule 1 of the Code." 15. Recently in the case of Executive Officer Arthaneswarar Temple v. R. Sathyamoorthy, (1999)3 SCC 115 this Court restated the general principles for dealing with the applications under Order XXIII Rule 1, C.P.C. in the following words: (SCC Headnote) "Various High Courts have rightly held, while dealing with applications under Order 23, Rule 1, C.P.C. that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial Court dismissing the suit and if the appellant- plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial Court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted." (pp.463-465) 7. In Man Sukh vs. Jagdish Chand, 2003(2) Shim.L.C. 24 , the Court holds:- “9. Relying upon Tarachand Bapuchand v.Gaibihaji Ahmed Bagwan, AIR 1956 Bombay 632, Mr.Bhardwaj submits that failure to make a proper claim or implead party or produce appropriate evidence cannot be said to be a formal defect or which may be described as fatal to the suit within the meaning of Order 23 Rule 1(3) of the Code. True it is. A defect which goes to the merit of the case cannot be said to be a formal defect for the purposes of Order 23 Rule 1(3) of the code. True it is. A defect which goes to the merit of the case cannot be said to be a formal defect for the purposes of Order 23 Rule 1(3) of the code. A plaintiff cannot be allowed to withdraw a suit when he has failed to adduce appropriate evidence in the suit and when he knows that his suit is bound to fail for want of proof. 10. Mr.Goel, on the other hand, submits that the present case may not fall within the meaning of formal defect, but the grounds pleaded by the plaintiff are sufficient for allowing the plaintiff to withdraw the suit and institute a fresh suit for the same subject-matter as contemplated under Rule 1(3)(b) of Order 23 of the Code. 11. Referring to Daulat Ram v. Smt.Janki Devi and others, 1995(1) Sim.L.C. 132, Mr.Goel contends that it is not necessary that there should be a formal defect in the suit for its withdrawal. The plaintiff can be permitted to withdraw the suit with permission to bring another suit on the same subject matter if there are sufficient grounds which need not be `ejusdem generis’ to the formal defect. In other words those grounds need not be analogous to formal defect. There can be no dispute with the argument raised by Mr. Goel. The question nevertheless arises whether in the present case those grounds exist or are made out by the plaintiff which are sufficient to permit the plaintiff to withdraw the suit and institute a fresh suit for the same subject matter. 12. Plaintiff, in my view, cannot be permitted to take shelter behind this provision, after prolonged litigation, on the realization of the weakness of his case on merits. I find substance in the contention of Mr.Bhardwaj that finding serious lacunae in his case, the plaintiff resorted to this provision to prolong the agony of the defendant. As pointed out in Chander and others v. Gulazari Lal and others, 1979 The Punjab Law Reporter, 637, the mere inability of the plaintiff to produce the relevant record or to adduce the adequate evidence to substantiate its claim cannot be a good or sufficient reason for instituting a fresh suit, on the same subject matter. Even a lapse on the part of the plaintiff to fully describe the suit land, in itself does not warrant the grant of permission to file a fresh suit. Even a lapse on the part of the plaintiff to fully describe the suit land, in itself does not warrant the grant of permission to file a fresh suit. Learned District Judge in his impugned judgment has failed to pinpoint either a formal defect or sufficient grounds on which liberty could be granted to the plaintiff to institute a fresh suit.” (pp.26-27) 8. Adverting to the facts of the present case, I do not find that the pleadings are sufficient to invoke the provisions of Order 23 Rule 1 sub rule 3 CPC as they are terse and bereft of the necessary ingredients to invoke this provision. This revision petition is, therefore, dismissed. However, taking into consideration the facts that the respondents themselves admit that the defect is covered under Order 6 Rule 17 CPC, it will be open to the petitioner to move an application for amendment of the plaint. No order as to costs.