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2014 DIGILAW 21 (PNJ)

Manjit Singh v. Kulbir Singh

2014-01-08

SABINA

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Sabina, J. By way of this petition, petitioner has challenged the order dated 15.9.2011 (Annexure P-3), passed by the Appellate Court, whereby application moved by the petitioner under Order 23 Rule 1 of the Code of Civil Procedure, 1908 (CPC for short) was dismissed. Learned counsel for the petitioner has submitted that the trial Court had, itself, found that there was technical defect in the suit. Hence, the Appellate Court should have allowed the petitioner to withdraw the suit in question with permission to file a fresh one on the same cause of action. In support of his arguments, learned counsel has placed reliance on the decision of this Court in M/s. Manohar Cold Storage and Ice Factory v. Baldev Singh and others 2010 (3) Civil Court Cases 0481, wherein, it was held as under:-- 23. Reverting back to the facts of the present case; The trial Court has specifically recorded in para 19 of its judgment that "it is not deciding issue Nos. 1 and 2 which are the issues on merits. Issue Nos. 6 to 9 are decided against the plaintiff and against the defendants respectively. Only issue Nos. 3 and 4 have been decided against the plaintiff on the basis of which suit has been dismissed, wherein the trial Court has observed that mere suit for injunction is not maintainable as the plaintiff was also required to seek declaration as well because the defendants have alleged that Manohar Singh was not the managing partner of the firm. Thus, holding the suit to be not maintainable for want of seeking another prayer by the plaintiff is a formal defect which can be allowed to be cured by the plaintiff by way of withdrawing the appeal and to file fresh suit on the same cause of action is well in accordance with law. Thus, holding the suit to be not maintainable for want of seeking another prayer by the plaintiff is a formal defect which can be allowed to be cured by the plaintiff by way of withdrawing the appeal and to file fresh suit on the same cause of action is well in accordance with law. The judgments cited by learned counsel for the respondents in the case of Darshan Singh v. Kartar Singh and Bawa Singh v. Smt. Tej Kaur (Supra) are distinguishable on the point that if there is no technical or formal defect in the suit and the finding has been returned by the trial Court on merits touching the rights of the parties, permission to withdraw the suit at the stage of appeal with permission to file fresh suit on the same cause of action cannot be given as a valuable right is already vested in the other side." 2. Learned counsel for the respondent, on the other hand, has submitted that the petitioner had failed to specify the formal defect in the suit in the application under Order 23 Rule 1 CPC. Hence, the Appellate Court had rightly dismissed the application moved by the petitioner under Order 23 Rule 1 CPC. In support of his arguments, learned counsel has placed reliance on Veerbhadrappa v. Mahalingappa and others 2009 (3) Civil Court Cases 0547, wherein, it was held as under:-- 13. It is essential for the plaintiff to make out a ground seeking withdrawal of the suit for presenting a fresh suit on same cause of action. The plaintiff is required to disclose nature of formal defect in the application and if the application remains silent on this material point, such an application cannot be entertained by the court. In the instant matter, I find that the application tendered by the plaintiff do not satisfy requirements of Order XXIII, Rule 1(3)(a) and as such, the first Appellate Court was not justified in permitting the plaintiff to withdraw the suit with liberty to present fresh suit on the same cause of action. 3. Petitioner had filed a suit for permanent injunction to the effect that the defendant be restrained from interfering and dispossessing the plaintiff from the house in dispute forcibly and illegally. On the pleadings of the parties following issues were framed by the trial Court:-- 1. Whether the plaintiff is entitled for permanent injunction as alleged? 3. Petitioner had filed a suit for permanent injunction to the effect that the defendant be restrained from interfering and dispossessing the plaintiff from the house in dispute forcibly and illegally. On the pleadings of the parties following issues were framed by the trial Court:-- 1. Whether the plaintiff is entitled for permanent injunction as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has got no locus standi to file the present suit? OPD 4. Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD 5. Relief. 4. While deciding issues No. 2, 3 and 5, trial Court held as under:-- 9. Issues No. 2 and 3 In view of my detailed findings on the above issue this court is of the opinion that having failed to prove independent right to own the property and to prove that the agreement to sell was executed by Pritam Kaur wife of Bhagat Singh and Pritam Kaur daughter of Karam Singh in favour of plaintiff against valid title and in the absence of any evidence to that effect and on the contrary the evidence led by the defendant and the admissions on the part of plaintiff and his witnesses that the property in question was owned by Bhagat Singh besides other property, which was partitioned, simple suit for permanent injunction is not maintainable and plaintiff being not in possession of suit property had no locus standi to file the suit. Hence, both these issues are decided against the plaintiff and in favour of defendant. Issue No. 4. 10. In view of my detailed observations and findings hereinbefore, this court is of the opinion that the suit for declaration with consequential relief of permanent injunction was maintainable by impleading all the legal heirs of Bhagat Singh in the absence of which the present suit was not maintainable. Similarly, the present suit in the absence of other legal heirs of Bhagat Singh is not maintainable as other legal heirs of Bhagat Singh were also necessary parties. Hence, this issue is also decided against the plaintiff and in favour of defendant. 5. Aggrieved against the said judgment/decree passed by the trial Court dated 26.3.2010, petitioner preferred an appeal. Similarly, the present suit in the absence of other legal heirs of Bhagat Singh is not maintainable as other legal heirs of Bhagat Singh were also necessary parties. Hence, this issue is also decided against the plaintiff and in favour of defendant. 5. Aggrieved against the said judgment/decree passed by the trial Court dated 26.3.2010, petitioner preferred an appeal. During the pendency of appeal, petitioner moved an application under Order 23 Rule 1 CPC to withdraw the suit with permission to file a fresh one on account of formal defect in the suit. The Appellate Court, vide impugned order dated 15.9.2011 (Annexure P-3) dismissed the said application on the ground that in the application moved by the petitioner, he had failed to mention the formal defect in the suit. 6. In the present case, the Appellate Court has adopted a very technical approach. Courts are expected to impart justice between the parties. The trial Court has itself held that the suit filed by the plaintiff was not maintainable in its present form as the petitioner should have also sought relief of declaration with consequential relief of permanent injunction by impleading all legal heirs of Bhagat Singh. Petitioner could not have been penalised on account of improper pleadings submitted by his counsel while moving application under Order 23 Rule 1 CPC. Since the trial Court itself had held that the suit filed by the plaintiff was not maintainable in the present form, the Appellate Court should have allowed the petitioner to withdraw the suit with permission to file a fresh one so that the case of the petitioner could have been decided on merits. The defect pointed out by the trial Court in filing the suit filed by the petitioner could have been only cured by allowing the petitioner to withdraw the suit and file a fresh one on the same cause of action in accordance with law. Accordingly, the petition is allowed. Impugned order dated 15.9.2011 (Annexure P-3) is set aside. Consequently, the application moved by the petitioner under Order 23 Rule 1 CPC is allowed. The suit filed by the petitioner is dismissed as withdrawn with liberty to the petitioner to file a fresh one on the same cause of action in accordance with law. ___