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2013 DIGILAW 1070 (HP)

Ram Lal v. Khem Chand

2013-12-31

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT : Dharam Chand Chaudhary, J. Challenge herein is to the judgment and decree dated 19.1.2013 passed by learned District Judge, Mandi, in Civil Appeal No.47 of 2012, whereby the appeal preferred by the appellant, hereinafter referred to as 'the plaintiff", has been dismissed and the judgment and decree dated 21.4.2012 passed by learned Civil Judge (Junior Division), Court No.3, Mandi, in Civil Suit No.32/2007, has been upheld. 2. The complaint is that the agreement duly executed by the parties has not been acted upon by the respondent-defendant, as he has refused to honour the same. The plaintiff, instead of filing a suit for specific performance of the contract, filed a suit for declaration and mandatory injunction, seeking direction to the defendant to put him in possession of one of the two shops he constructed from his own funds over the land belonging to the defendant, pursuant to agreement Ext. PW1/A. When the plaintiff came to know about such defect in the plaint, he filed an application under Order 23, Rule 1 (3) read with Section 151 of the Code of Civil Procedure, for permission to withdraw the suit with liberty to file fresh suit on the same cause of action. The application so filed, however, was dismissed by learned trial Court and the ground to this effect raised in the 1st appeal also did not find favour with the learned lower appellate Court. 3. The legality and validity of the impugned judgment has been assailed on several grounds, however, mainly that the denial of permission to withdraw the suit with liberty to file fresh one on the same cause of action by both the Courts below has resulted into miscarriage of justice to the plaintiff, as the suit has been dismissed on the sole ground of maintainability with the observation that instead of filing a suit for declaration, the plaintiff should have filed a suit for specific performance of the contract. 4. Annexed to the appeal, is an application, under Order 23, Rule 1 (3) read with Section 151 CPC, registered as CMP No.17543/2013. The present appeal is at its initial stage being not admitted so far and as such taken up for admission/hearing. 5. The record reveals that the execution of agreement Ext. PW1/A is not in dispute and even while returning findings on issue No.1, learned trial Judge has concluded that agreement Ext. The present appeal is at its initial stage being not admitted so far and as such taken up for admission/hearing. 5. The record reveals that the execution of agreement Ext. PW1/A is not in dispute and even while returning findings on issue No.1, learned trial Judge has concluded that agreement Ext. PW1/A is legal and valid being proved to be duly executed by the parties to the suit. Not only this, but while returning findings on issue No.2, it has been held that the defendant had agreed to transfer one of the two shops in favour of the plaintiff as per its location given in the pleadings in lieu of construction of two shops by the latter from his own funds over the land belonging to the former. The plaintiff, however, has been non-suited with the observation that rather than filing a suit for specific performance of the contract, he has filed a suit for declaration. He was not found to have any vested right or title in the shop in question, hence held to be not entitled to the declaration, as sought, as contemplated under Section 34 of the Specific Relief Act. It has further been observed while answering issue No.4 that had the plaintiff been found to have performed his part of the contract, only then a direction could have been issued to the defendant to perform his part of the contract. Also that in the absence of any pleading or the relief to this effect sought in the plaint, the relief of declaration as sought in the plant cannot be granted. 6. The fact, therefore, remains that the plaintiff has been non-suited only for want of pleadings and proof qua performance of his part of the contract, as the defendant seems to have pleaded breach of the conditions of the agreement by the plaintiff himself. 7. It is canvassed that the plaintiff inadvertently filed the suit for declaration instead of specific performance of the contract and when it transpired that the suit is bound to fail on account of such defect in the pleadings, application under Order 23, Rule 1 (3) read with Section 151 PC was filed in the trial Court itself for withdrawal of the suit with liberty to file fresh one on the same cause of action. 8. 8. Learned trial Judge while dismissing the application vide order dated 17.1.2012, seems to be influenced by the fact that the application was filed at such a stage when the plaintiff's evidence was over and the suit fixed for final hearing and also that in view of the averments in the plaint that he has performed his part of the contract, the defect in the pleadings could have been cured by filing application for amendment of the plaint. Learned lower appellate Court while concurring with the findings recorded by leaned trial Judge has observed as under: "..The learned trial Court dismissed the suit of the plaintiff, meaning thereby a decree has been passed against the plaintiff. It seems that the defects as pleaded by the plaintiff/appellant in the application are due to his own fault and in such situation, the plaintiff cannot be permitted to withdraw the suit with a liberty to file fresh one on the same cause of action." 9. I am not in agreement with the findings so recorded by both the Courts below. The expression 'formal defect' has been defined by our own High Court in Daulat Ram v. Smt. Janki Devi and others, 1995 (1) Sim. LC 132, In that case the order passed by the District Judge allowing the plaintiff to withdraw the suit with liberty reserved to file fresh suit was held legal and valid, as the relief in the plaint was not sought on the basis of title. 10. On behalf of the respondent-defendant, reliance has been placed on the judgments in Mangat Ram v. Chura Dutt and another, 2003 STPL (HJ) 64 HP, R. Rathinavel Chettiar and another v. V. Sivaraman and others, (1999) 4 SCC 89 , K.S. Bhoopathy and others v. Kokila and others, (2000) 5 SCC 458 and Abdul Raheem v. Karnataka Electricity Board and others, (2007) 14 SCC 138 . However, the facts of all these cases reveal that the application for withdrawal of the suit was filed before the appellate Court and the permission so sought, granted after adjudication of the controversy on merits by the trial Court, was not held to be legal and valid. However, the facts of all these cases reveal that the application for withdrawal of the suit was filed before the appellate Court and the permission so sought, granted after adjudication of the controversy on merits by the trial Court, was not held to be legal and valid. The facts in this case, however, differ from the cases decided vide judgments cited herein above, because in the case in hand the application for withdrawal of the suit was filed in the trial Court itself i.e. well before the adjudication of the point in issue on merits. In the given facts and circumstances, this Court is of the considered view that the declaration sought by the plaintiff could have not been granted and the appropriate remedy available to him was to have filed suit for specific performance of the contract. Paragraphs 2 and 3 of the application under Order 23, Rule 1 (3) CPC filed in the trial Court, which read as follows, constitute sufficient grounds within the meaning of Order 23, Rule 1 (3) CPC for allowing the plaintiff to withdraw the suit with liberty to institute fresh one on the same cause of action: "2. That due to oversight and inadvertently the plaintiff-applicant has filed suit for declaration and injunction with regard to the construction of 2 shops, upon the joint land comprised under Khasra No.289, measuring 1-4-19 bighas, situated in Muhal Dhawali-Badehar, Illaqua Tungal, Sub-Teh. Kotli, District Mandi, H.P. against the defendant/respondent, whereas it should have been suit for specific performance of contract and injunction, which fact came to the notice/knowledge of counsel of plaintiff applicant while preparing the case for arguments and as such there is formal defect in the present suit and same must fail by reason of said formal defect. 3. That there is also requirement of issuance of notice to the defendant/respondent before filing the suit, for specific performance of contract, and due to the facts stated/submitted herein above, there is formal defect and sufficient grounds for allowing the plaintiff/applicant to institute a fresh suit for the subject matter on the same cause of action." 11. As a matter of fact, in view of the findings recorded by learned trial Judge, particularly on issues No.1 and 2, the case of the plaintiff is almost proved to be true and correct and he has simply been non-suited on the ground of maintainability of the suit. As a matter of fact, in view of the findings recorded by learned trial Judge, particularly on issues No.1 and 2, the case of the plaintiff is almost proved to be true and correct and he has simply been non-suited on the ground of maintainability of the suit. The defect was not of such a nature as could have been cured by seeking amendment of the plaint for the reason that there is lot of difference in a suit for declaration and specific performance of the contract. Therefore, the defect could have not been cured by allowing amendment of the plaint. On the other hand, it is apparent that for want of pleadings and appropriate relief sought by the plaintiff, the suit was bound to fail and is rather failed. 12. Therefore, in all fairness and in the ends of justice, the plaintiff should have been allowed to withdraw the suit with liberty reserved to file fresh suit on the same cause of action. Learned trial Judge is even not justified while arriving at a conclusion that the application was filed at a belated stage viz. when fixed for final hearing for the reason that the Hon'ble Apex Court in Baniram and others v. Gaind and others, AIR 1982 SC 789 allowed the suit to be withdrawn with liberty reserved to file fresh one on the same cause of action on the similar grounds. 13. I, therefore, allow the application (CMP No.17543/2013) and grant permission to the appellant plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action, leaving it open to the defendant to take all objections available to him in accordance with law. Consequently, the suit is hereby ordered to be dismissed as withdrawn, subject to payment of Rs. 5000/- as cost. The plaintiff shall be at liberty to file fresh suit on the same cause of action in the trial Court. Resultantly, the appeal also stands dismissed. Pending application(s), if any, shall also stand disposed of.