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2012 DIGILAW 962 (HP)

Kishan Chand v. Sita Ram

2012-12-11

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. The petitioners are the plaintiffs who challenge the order passed by the learned Civil Judge (Senior Division), Shimla, which is a composite order disposing of two applications; (a) under Order 23 Rule 1 and 3 of the Code of Civil Procedure (hereinafter referred to as `CPC’) and second under Order 6 Rule 17 CPC. 2. Before adverting to the facts, the learned Judge was well advised to have considered both these applications separately and not to have disposed them of by a common order. It is not an established precedent in dealing with miscellaneous application when they invoke different provisions of law to seek different reliefs to lump them and decide them by a common order since the principles of law involved/facts are different. I find that the manner in which both these petitions have been dealt with is most unsatisfactory and unwarranted in law. 3. Adverting to the first application under Order 23 Rule 1 and 3 CPC, the plaintiffs herein had instituted a suit praying for decree for foreclosure declaring them to be the owners in possession of the land comprised in Khasra No.224/1/2, measuring 7-7 bighas, Khata Khatauni No.39/91, situated at Mauza Majthai, Tehsil and District Shimla, coupled with a decree of permanent prohibitory injunction restraining the defendants from receiving any amount of compensation for acquisition of the land. It is pleaded that “the plaintiffs have recently came to know that the defendants are neither the owners of the land nor have any right, title or interest in the same.” According to them, the land in the suit was initially mortgaged in favour of Kirpa Ram son of Shri Haria (predecessor-in-interest of the applicants-plaintiffs) and after his death his son Narayanu stepped into his shoes as a mortgagor. After his death, Gorkhu is supposed to have inherited the estate of Narayanu on the basis of a will which is alleged to have been executed in his favour by Narayanu and on this basis, the land mortgaged by the predecessor-in-interest of the plaintiffs was entered in the name of Jiwan Lal and others and on his death in the name of non-applicants- defendants. According to the plaintiffs, there was no will in the revenue records and the name of Gorkhu had been wrongly entered as owner of the land and after his death in favour of the defendants. The revenue entries are wrong. According to the plaintiffs, there was no will in the revenue records and the name of Gorkhu had been wrongly entered as owner of the land and after his death in favour of the defendants. The revenue entries are wrong. They pleaded that had the plaintiffs known these facts and since the defendants were never the owners of the suit land in dispute, it has wrongly been filed against them and as such they seek liberty to withdraw the suit and to file a fresh suit in accordance with law. This is the entirety of the pleadings so far as the first point is concerned. The law with respect to the withdrawal of suits has been well settled by this Court in CMPMO No.241 of 2006, decided on 1.9.2006, titled: Promila Bakshi & Others vs. Ashok Bhatia and Others, 2007(1) Civil Court Cases 367 (H.P.), this Court speaking through Hon’ble V.K. Gupta (CJ) holds:- “1. Vide the impugned order dated 19th July,2006, the learned Civil Judge (Junior Division)Court No.2, Kasauli, District Solan has rejected the Application of the petitioners filed under Order 23 Rule 1(3) of the Code of Civil Procedure for permission to withdraw the pending suit with liberty to file a fresh suit on the same cause of action. Sub Rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure 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 or the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” 2. By now it is a settled proposition of law that permission to withdraw the suit with liberty to file a fresh suit can be granted to a plaintiff only if one of the two situations or contingencies exist, or are made out, viz. that the suit may not fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action. that the suit may not fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action. The existence of both these grounds or even one of them, of course is subject to the satisfaction of the Trial Court. 3. I have carefully gone through the impugned order as well as the contents of the Application filed by the petitioners for permission to withdraw the suit and find that in so far as the first ground is concerned surely it cannot be said that the suit as instituted suffered from any formal defect. On the own showing of the petitioners the suit as instituted suffered from vital and grave defects of substance, actually very, very vital defects of substance and by no stretch of imagination could any of these be called as “formal defects”. The learned trial Court has correctly held and with elaborate reference to the contents of the Application and the material on record that the Application filed for granting permission to withdraw the suit was also very vague. I have myself gone through the copy of the Application and fully agree with this opinion of the learned trial Court. (p.368) 4. 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. 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. 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. 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. 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. 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. 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) 5. 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. 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. 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) 6. I find that the pleading of the plaintiffs is vague to the extreme. In case as pleaded, the fact situation did not exist, the question of filing of a fresh suit against the defendants which the plaintiffs now seek to abandon would not arise at all, as according to the plaintiffs they do not derive any title at all. But, having challenged their ownership and invited adjudication, the plaintiffs cannot be allowed to withdraw the suit pleading formal defect which does not exist. The plaintiffs being the dominus litus can abandon the suit if so permissible but cannot be given the liberty of filing a fresh suit. In these circumstances, what I find is that there is no formal defect. 8. Adverting to the second application under Order 6 Rule 17 CPC, the plaintiffs seek to amend the plaint by incorporating the facts that neither Smt. Rekha Devi nor other defendants were the owners of the suit land and did not derive any title from Kirpa Ram who was survived by his son Narayanu who had no heir to succeed his estate and one Shri Gorkhu wrongly got his name entered in the revenue record. It further proceeds that defendant Smt. Rekha Devi or others never succeeded to the estate much less the suit land owned by Shri Kiripa Ram. The plaintiffs were misleading in admitting the defendants as owners of the suit land on the basis of wrong revenue entries. 9. Adverting to the question of amendment, the Supreme Court in Rajesh Kumar Aggarwal and others vs. K.K. Modi and others, (2006)4 SCC 385 , holds:- “16. Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 17. Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.” (pp.392-393) 10. Adverting to the principle laid down hereinabove, the Court holds:- “20. ... … … … … The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting malafide. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. … … … …” (pp.393-394) 11. The learned Court holds that categorical admissions have been made by the plaintiffs and in this eventuality they cannot be allowed to withdraw the suit. It was urged before me that what the amendment seeks is not taking away any admission(s), which have been made in the plaint, but merely to explain it. 12. In these circumstances, the amendment should have been treated as one explaining away the admission and not as one substituting a different state of facts than those which were pleaded in the plaint. I find this submission difficult to accept for the reason that having based their cause of action in a particular manner on pleaded facts in the plaint, the defendant now seeks to withdraw admissions (which of-course require proof by evidence). In this eventuality, in Sh. Devi Dass vs. Sh. I find this submission difficult to accept for the reason that having based their cause of action in a particular manner on pleaded facts in the plaint, the defendant now seeks to withdraw admissions (which of-course require proof by evidence). In this eventuality, in Sh. Devi Dass vs. Sh. Devi Singh and Others, Latest HLJ 2008 (HP) 1036, Hon’ble Deepak Gupta, J., after considering the entire law on amendments, holds:- “10. … … … … … … … … The Apex Court in Rajesh Kumar Aggarwal and others vs. K.K. Mod and others, (2006) 4 SCC 385 , has held that the Court must allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The Apex Court held that real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. 11. In case Baldev Singh and others vs. Manohar Singh and another, (2006) 6 SCC 498 the apex Court held that a defendant can be permitted to add a new ground of defence or substitute or alter a defence and in that sense the scope of amendment of written statement is much wider than that of amending a plaint. The Apex court also held that the Courts should be more liberal while allowing the amendment of a written statement. However, despite holding so the Apex court with regard to admissions, held as follows: “That apart, in the case of Estralla Rubber vs. Dass Estate (P) Ltd. [ (2001) 8 SCC 97 ], this Court held that even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement.” It is clear that the Apex Court did not permit withdrawal of the admission but only permitted the defendant to explain the admission by way of amendment. 12. The law with regard to the amendment has been crystallized in the latest judgment of the Apex court in Usha Balashaheb Swami and others vs. Kiran Appaso Swami and 9 others, (2007) 5 SCC 602 , wherein the apex Court held as follows: “17. 12. The law with regard to the amendment has been crystallized in the latest judgment of the Apex court in Usha Balashaheb Swami and others vs. Kiran Appaso Swami and 9 others, (2007) 5 SCC 602 , wherein the apex Court held as follows: “17. From a bare perusal of Order 6 Rule 17 of the Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced. 18. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C. 49] may be taken note of. The Privy Council observed: "All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit." (Underlining is ours) 19. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 20. … … … … … … 21. … … … … … … 22. Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.” The Apex Court further held that a defendant by amending the written statement is entitled to take new defence and also to plead an inconsistent stand. However, it went on to hold that by making the application for amendment of written statement the admission could not be withdrawn though it may be explained. In the facts of the said case the Apex court held that it was not a case of either withdrawal of admission or washing out the admission. 13. In the present case, as discussed above, I am of the considered view that the defendants had made specific admission that Rup Dass was the previous owner of half share of land comprised in khasra Nos.67, 76, 96, 97 and had claimed that they had become owners by adverse possession in respect of the half share of Rup Dass. This was a clear admission which could not be permitted to be withdrawn. This was a clear admission which could not be permitted to be withdrawn. By way of amendment it is not that the admission is being explained but the defendants are taking a diametrically opposite stand in as much as earlier they had only claimed to have become owners by way of adverse possession but now they claims 2/3rd shares in the half share. In my view they cannot be permitted to do this.” 13. This is a complete answer to what the petitioners submit. In these circumstances, I find no merit in this petition which is dismissed. Of-course, it will be open to the plaintiffs to explain away their admission in accordance with law.