Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 821 (GAU)

Puspendra Nath Borah v. Lalit Chandra Borah

2014-08-28

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (ORAL) In this application under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure, petitioner Puspendra Nath Borah has challenged the order dated 04.03.2014 passed by the learned Civil Judge No. 3, Kamrup at Guwahati thereby refusing withdrawal of Title Suit No. 224/2007 with liberty to re-file. 2. The present petitioner, as plaintiff, instituted Title Suit No. 224/2007 in the Court of learned Civil Judge (Sr. Divn.) No. 1 at Guwahati praying for a decree of Specific Performance of Contract made on 16.06.2007 thereby directing the defendant to execute a deed of sale for suit land on receipt of balance consideration of Rs. 41,50,000/-. The defendant appeared and submitted written statement whereupon the learned Court framed issues and put the parties to place their respective evidence. The plaintiff accordingly submitted examination-in-chief in the form of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure but when the case was fixed for cross examination of the plaintiff, an application was filed under Order XXIII Rule 1 of the Code of Civil Procedure praying for withdrawal of the suit with liberty to file afresh. In paragraph 3 of this application, petitioner stated that the plaintiff and the defendant are own brothers and the entire land measuring 3 bighas 3 kathas 11 lechas was purchased by them by different sale deeds in the name of the plaintiff, the defendant and their deceased father without specifying any boundaries of the respective share of parties. The whole land, therefore, is a single unit with a common boundary. But the plaintiff instituted a suit for Specific Performance of Contract in respect of a plot of land measuring 4 kathas 13 lechas out of 3 bighas 3 kathas 11 lechas and that there is a formal defect in the suit. This, according to the plaintiff, is failure to make prayer for partition and demarcation of land. It is not possible to execute a decree for specific performance in respect of the suit property unless there is a partition between the parties. Inadvertently, no such relief for partition of the said property was made in the present suit and as it came to light only during the cross examination of the witnesses of the plaintiff and this is why necessity for filing of this application had arisen. Inadvertently, no such relief for partition of the said property was made in the present suit and as it came to light only during the cross examination of the witnesses of the plaintiff and this is why necessity for filing of this application had arisen. The plaintiff stated that amendment for incorporation of prayer for partition may change nature and character of the suit. With these averments, plaintiff made a prayer that order be passed granting leave to withdraw the suit with liberty to re-file. 3. This application of the plaintiff was objected by the sole defendant by filing a written objection. In the objection it is stated that on the basis of petition submitted by the plaintiff petitioner there was appointment of an Advocate Commissioner for recording of cross examination of PW1 but even after several dates were passed the same ultimately did not materialise. Defendant alleged that plaintiff witnesses remained absent without steps on a number of dates. But the case of the defendant is that there was no formal defect made by the plaintiff within the meaning of Order XXIII Rule 1 of the Code of Civil Procedure. 4. After hearing the counsel for the parties, the learned Court by order dated 04.03.2014 rejected the application holding that the ground set forth in paragraph 3 of the application of the plaintiff does not reveal any formal defect. It is the finding of the learned Court that the suit is a one for Specific Performance of Contract and for execution of sale deed with respect to 4 kathas 13 lechas. Plaintiff took a specific stand in paragraph 3 of the plaint that suit land measuring 4 kathas 13 lechas is situated at the back side of the remaining land of dag No. 81 patta No. 62 which stands in the name of the defendant. He projected the suit land to be a separate plot of land belonging exclusively to the defendant. He also stated in paragraph 4 of the plaint that the said plot of land measuring 4 kathas 13 lechas was purchased separately in the name of the defendant. From these averments the learned Court came to hold that the stand taken by the plaintiff in the application praying for leave under Order XXIII Rule 1 is altogether different from the one earlier taken in the plaint. From these averments the learned Court came to hold that the stand taken by the plaintiff in the application praying for leave under Order XXIII Rule 1 is altogether different from the one earlier taken in the plaint. The learned Court, therefore, held that there was no formal defect in the suit and no sufficient ground for allowing the application of the petitioner. In consideration of the above observations, the learned Court rejected the application by order dated 04.03.2014. This order has been brought under challenge in this present revision petition. 5. I have heard Ms. M Dev, learned counsel for the petitioner and Mr. D Baruah, learned counsel for the opposite party. Ms. M Dev, learned counsel for the petitioner submits that there exists sufficient grounds for allowing the plaintiff to institute a fresh suit under Order XXIII Rule 1(3) of the Code of Civil Procedure. According to the learned counsel, unless there is partition and demarcation of the property, the question of Specific Performance of Contract would not be feasible. This, according to the learned counsel, comes within the sweep of ‘sufficient ground’ under Order XXIII Rule 1(3)(b) of the Code of Civil Procedure and consequently the impugned order passed by the learned Court is liable to be set aside and plaintiff be permitted to withdraw the suit with liberty to file afresh. 6. Per contra, Mr. D Baruah, learned counsel for the opposite party, submits that ‘sufficient grounds’ appearing in clause (3) of Order XXIII Rule 1 has to be analogous to formal defect. Although, the principle of ejusdem generis does not strictly apply to the case but what is laid down in clause (b) of the Order XXIII Rule 1(3) must have similarity in character with that of clause (a) of the Order XXIII Rule 1(3). Clause (a) speaks of formal defect. Formal defect has not been defined in the Code but preponderant judicial pronouncement is that a formal defect has to be understood to be a defect of form and not of substance. Any defect of the suit such as misjoinder of parties and cause of action, material documents, non-payment of proper stamp erroneous valuation etc. which do not have any reference to the subject matter of the suit have so far been considered to be formal defects. Mr. Any defect of the suit such as misjoinder of parties and cause of action, material documents, non-payment of proper stamp erroneous valuation etc. which do not have any reference to the subject matter of the suit have so far been considered to be formal defects. Mr. D Baruah has placed reliance on the Full Bench judgment of the Hon’ble Bombay High Court in the case of Ramrao Bhagwantrao Inamdar and another v. Babu Appanna Samage and others reported in AIR 1940 Bombay 121 (FB). The Full Bench of the Hon’ble Bombay High Court in the aforesaid judgment has discussed the legal history as to incorporation of the words ‘formal defect’ and the nature and character of the power exercised by the Court in this regard. It would be profitable to quote the relevant observation of the Hon’ble Bombay High Court in this regard. “Before the Civil Procedure Code was enacted in 1859, suits were allowed to be withdrawn on certain recognized grounds, such as those mentioned in the leading case in 13 MIA 160. In that case their Lordships of the Privy Council laid down in effect that there was no power in the Courts in India, similar to that exercised by Courts of Equity or Common Law in England, to dismiss a suit with liberty for the plaintiff to bring a fresh suit for the same matter, or to enter a non-suit, and that such power of Indian Courts was limited to questions of form, as in the case (1) of misjoinder of parties, or of the matters in suit, (2) where a material document had been rejected for not having a proper stamp, and (3) if there had been an erroneous valuation of the subject matter of the suit. Their Lordships proceeded to observe (page 170) : In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit........... Although the suit with which their Lordships were dealing was of the year 1856, their decision was pronounced in 1869. Although the suit with which their Lordships were dealing was of the year 1856, their decision was pronounced in 1869. In the interval the Civil Procedure Code of 1859 was passed, and S. 97 of that Code empowered the Court to allow the withdrawal of a suit with liberty to file a fresh suit for the same matter, if the plaintiff at any time before final judgment satisfied the Court that there were “sufficient grounds” for permitting him to withdraw. The Section contained no words corresponding to those in cl. (a) of O. 23, R. 1, sub-r. (2) of the present Code, and Courts began to make very free use of the power given to them, regardless of the nature of the grounds. In 16 W R 101 it was held that permission under S. 97 could be granted where the plaintiff stated that it would be out of his power to adduce evidence existing in certain records, within the period fixed by the Court for hearing the case. The suit was allowed to be withdrawn by the Appellate Court on a similar ground in 20 W R 163 Phear J. Observed (page 163) : .........instead of passing a final decree against him (plaintiff) now on the ground of there being no evidence to support his case, it is right in the interest of justice to allow him to withdraw his suit with permission to bring a fresh suit to enforce his claim against the defendants. This case was decided in 1873 and the decision was clearly opposed to the principle laid down by the Privy Council in 13 MIA 160, but S. 97 of the Code was regarded as not recognizing that principle. But next year in 21 WR 291 under similar circumstances Kemp J. Followed 13 MIA 160 and held that the plaintiff could not be permitted to withdraw with liberty to bring a fresh suit, after issues had been joined, and he had failed to produce evidence to support his claim. In view of this conflict of decisions, the words as to the suit failing by reason of some formal defect were first added in the corresponding S. 373, Civil P.C., of 1877 and the same wording was retained in the Code of 1882. In view of this conflict of decisions, the words as to the suit failing by reason of some formal defect were first added in the corresponding S. 373, Civil P.C., of 1877 and the same wording was retained in the Code of 1882. In 33 Bom 722 Scott C.J. thought that this change was introduced to abrogate the view taken by Kemp J. Of the Bengal High Court in 21 WR 291 just cited. He observed (page 726) : The words of the Code of 1882 are different from the words construed in that case by Kemp J., for the Court is authorized to permit withdrawal not only where the suit must fail by reason of some formal defect but also where there are sufficient grounds for permitting the plaintiff to withdraw. With great deference we think that this view misinterprets the purpose of the addition of cl. (a). If sufficiency was to be the only test of the grounds on which the withdrawal of a suit could be permitted, then the words in cl. (a) would be superfluous. It is a well recognized canon of construction that a statute ought to be so construed that if it can be prevented, no clause, Section or word shall be “superfluous, void or insignificant” : (1879) 4 QBD 245. The obvious object of the addition was to give effect to the ruling of the Privy Council and not to override it as the earlier rulings referred to above though S. 97 of the Code of 1859 did. Although the expression “sufficient grounds” necessarily included the ground that a suit must fail by reason of some formal defect, the latter was specifically mentioned in cl. (a) by way of an illustration. The fact that it is mentioned in a separate clause by itself does not indicate that it absolutely restricts the following clause, but it provides an illustration of the grounds to be considered sufficient in a general way. The “grounds” though not ejusdem generis with the ground mentioned in cl. (a) must at least be analogous to it. In the Code of 1908, the only change made in the wording of cl. (b) was the addition of “other” before the words “sufficient grounds”. The “grounds” though not ejusdem generis with the ground mentioned in cl. (a) must at least be analogous to it. In the Code of 1908, the only change made in the wording of cl. (b) was the addition of “other” before the words “sufficient grounds”. In (1911) 1 M W N 105 the addition of the word “other” was held to suggest that the “sufficient grounds” must be ejusdem generis with the “formal defects” under cl. (a). This view was accepted by Beasley J. In AIR 1925 Mad 1268 . With respect, we do not think the word “other” suggests anything of the kind. It simply means “other than” the ground mentioned in cl. (a). By way of analogy, it may be pointed out that in 49 I A 144 their Lordships of the Privy Council interpreted the words “any other sufficient reason” appearing in O. 47, R. 1, Civil P.C., 1908, as meaning “a reason sufficient on grounds at least analogous to those specified immediately previously,” and that interpretation is binding upon us. In our opinion, there is a distinct difference between the Latin phrase “ejusdem generis” and the words “at least analogous,” the former being more restrictive than the latter. On the principle of ejusdem generis, the meaning of a general word is wholly restricted to the same genus to which the preceding word or words belong. The expression means “of the same kind,” whereas “analogous,” according to Chambers’s Twentieth Century Dictionary means “bearing some correspondence with or resemblance to; similar in certain circumstances, or relations.” What is apparent from above is that in a given case, plaintiff may be permitted to withdraw the suit with liberty to file afresh only if, the defects are found to be of form and not of substance. Applying the law settled in this regard, let us consider the facts in the present case. Here in this case, the plaintiff filed the suit against his brother for a particular plot of land. It was the case of the plaintiff initially that the suit land was owned and possessed by the defendant exclusively by purchase in his own name. Applying the law settled in this regard, let us consider the facts in the present case. Here in this case, the plaintiff filed the suit against his brother for a particular plot of land. It was the case of the plaintiff initially that the suit land was owned and possessed by the defendant exclusively by purchase in his own name. But in the application, filed under Order XXIII Rule 1, the plaintiff has claimed that suit land is a part of a plot of bigger plot of land purchased in the names of the plaintiff, the defendant and their deceased father and that unless the suit land is demarcated by way of partition of their shares then the prayer for Specific Performance of Contract may not be feasible. Plaintiff himself stated that this defect cannot be cured by amendment. Obviously, the defects shown in the application are of substance and not of form. Whether the suit property belongs to the larger plot of land as described in the application and whether the suit land was the individual property of the defendant are matters of fact which can be decided by leading evidence. At least it can be said that such aspects of the matter are beyond the realm of ‘formal defects’. Such shift in the stand of the plaintiff in regard to disclosure of material fact does not even fall in the analogous nature of the formal defect and that being the position, it is not apparently covered by ‘sufficient grounds’ as mentioned in Order XXIII Rule 1(3)(b) of the Code of Civil Procedure. The learned Trial court has not committed any error in rejecting the application holding that there is no formal defect. Even ‘sufficient grounds’ appearing in Order XXIII Rule 1(3)(b) has to be in the trappings of formal defect and this being not the case in present one, the impugned order dated 04.03.2014 cannot be interfered with. This application is accordingly rejected. 7. Parties shall appear before the learned Civil Judge No. 3, Kamrup, Guwahati to receive necessary orders.