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2015 DIGILAW 972 (HP)

Rajesh Kumar v. Roshan Lal

2015-07-30

RAJIV SHARMA

body2015
Judgment Rajiv Sharma, J. This petition is instituted against the order, dated 20.02.2015, rendered by the learned Civil Judge (Junior Division), Court No. 1, Una, H.P. in C.M.A. No. 53 of 2015 in Civil Suit No. 94 of 2006. 2. Key facts necessary for the adjudication of this petition are that the respondents have filed a Civil Suit No. 94/2006 for declaration to the effect that they were co-sharers to the extent of 6/10 share and the petitioners to the extent of 4/10 shares in the land, measuring 15733-01, comprised in Khewat No. 45, Khatauni Nos. 125 to 128 bearing Khasra numbers, as per the details given in the plaint, as per Jamabandi for the year 1996-97. 3. The written statement was filed by the petitioners. According to them, they were coming in possession of the suit land previously as tenant-at-will and as owners since 01.10.1975 under Section 104(3) of the Himachal Pradesh Tenancy and Land Reforms Act. It was also averred that the original owners had filed a Civil Suit No. 370 of 1983 against the petitioners qua the suit land with the prayer that they were owners in possession of the suit land. The suit was dismissed by the learned Trial Court on 31.10.1985. 4. The respondents have also moved an application for amendment of the plaint. The respondents have led their evidence. The respondents thereafter moved an application under Order 23 Rule 1 read with Section 151 of the Code of Civil Procedure with the prayer to withdraw the suit with liberty to file a fresh suit on the same cause of action. It was contested by the petitioners. The said application was allowed by the learned Trial Court on 20.02.2015. Hence this petition. 5. Mr. Pawan K. Gautam, learned counsel for the petitioners has vehemently argued that the learned Trial Court has not taken into consideration the principles governing the withdrawal of the Suit under Order 23 Rule 1(3) of the Code of Civil Procedure. 6. Mr. Dheeraj K. Vashishta, learned counsel for the respondents has supported the order, dated 20.02.2015. According to him, a fresh Civil Suit No. 255 of 2015 was filed on 07.04.2015. He also contended that the petitioners have put in their appearance on 22.04.2015. 7. Civil Suit No. 94/2006 was instituted on 22.08.2006. 6. Mr. Dheeraj K. Vashishta, learned counsel for the respondents has supported the order, dated 20.02.2015. According to him, a fresh Civil Suit No. 255 of 2015 was filed on 07.04.2015. He also contended that the petitioners have put in their appearance on 22.04.2015. 7. Civil Suit No. 94/2006 was instituted on 22.08.2006. An application to withdraw the suit has been filed after 7 years and 6 months of the filing of the suit. It was necessary for the respondents to prove that there was “formal defect” in the suit necessitating the withdrawal of the same. The respondents have already led their evidence and the application has been filed at a very belated stage. The respondents could have moved an application under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of the plaint instead of preferring an application under Order 23 Rule 1(3) of the Code of Civil Procedure. The parties cannot be vexed twice for the same cause of action. The substantive rights of the petitioners would be definitely affected by permitting the respondents to withdraw the suit. The parties cannot be permitted to start a fresh round of litigation on the same cause of action. 8. The respondents could not be permitted to withdraw the Civil Suit after they come to know about their inherent weekness in the case after leading their evidence. Merely that the petitioners have put in their appearence before the learned Trial Court in Civil Suit No. 255/15 on 22.04.2015, would not affect the merits of the present petition. The principles of acquisence, waiver and estoppel would not be applicable in this case, since the respondents have been permitted to withdraw the Civil Suit without there being a formal defect in the same. A formal defect is 'a defect of form' unrelated to the claim of the plaintiff on merits.” It is necessary for the applicability of Order 23, Rule 1(3) of the Code of Civil Procedure that there should be a formal defect and defect which cannot be cured by an amendment. The Civil Suit can never be permitted to be withdrawn for a defect of substance, as in the instant case. The Court has to apply its mind/satisfaction while permitting the parties to withdraw the Civil Suit. The Civil Suit can never be permitted to be withdrawn for a defect of substance, as in the instant case. The Court has to apply its mind/satisfaction while permitting the parties to withdraw the Civil Suit. The learned Trial Court, in the instant case, has not even noticed that there was any formal defect while allowing the application. The plea of formal defect is required to be taken specifically in the application seeking permission to withdraw a Civil Suit. 9. Their Lordships of the Hon'ble Supreme Court in K.S. Bhoopathy and others Vs. Kokila and others, AIR 2000 Supreme Court 2132 have held that it is the duty of the Court to feel satisfied about existence of proper grounds/reasons for granting permission to withdraw the suit with leave to file suit. Their Lordships have held as under:- “12. The provision in Order XXIII, Rule 1, CPC 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 par with an application by him in exercise of the absolute liberty given to him under sub-rule 1, In (he former it is actually a prayer for concession from the Court after satisfying the Court regarding existences of the circumstances justifying the grant of the 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; (1) where the Court is satisfied that a suit roust 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. 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 afresh 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) CPC 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.” 10. Accordingly, the present petition is allowed. The order, dated 20.02.2015, passed by the learned Civil Judge (Junior Division), Court No. 1, Una H.P. in C.M.A. No. 53 of 2015 in Civil Suit No. 94 of 2006, is set aside. Consequently, the Civil Suit No. 255/15, titled as Roshan Lal Vs. Rajesh Kumar & others pending before the leanred Civil Judge (Junior Division), Court No. 1, Una, H.P., is dismissed. The parties are directed to appear before the learned Civil Judge (Junior Division), Court No. 1, Una in Civil Suit No. 94/2006. Consequently, the Civil Suit No. 255/15, titled as Roshan Lal Vs. Rajesh Kumar & others pending before the leanred Civil Judge (Junior Division), Court No. 1, Una, H.P., is dismissed. The parties are directed to appear before the learned Civil Judge (Junior Division), Court No. 1, Una in Civil Suit No. 94/2006. The Civil Suit shall commence from the stage it was permitted to be withdrawn on 20.02.2015. Since the Civil Suit was instituted in the year 2006, the Civil Judge (Junior Division), Court No. 1, Una, H.P. is directed to decide the same within a period of four months from today. The miscellaneous application(s), if any, also stand(s), disposed of. No costs.