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2017 DIGILAW 1039 (HP)

Charan Dass v. Ram Saroop

2017-09-08

SANJAY KAROL

body2017
JUDGMENT Sanjay Karol, ACJ. - Petitioner-plaintiff Charan Dass (hereinafter referred to as plaintiff) filed an application, seeking permission to withdraw the suit, with liberty to file afresh, pointing out the only defect of not having filed the site plan. Such application, filed under Order 23 Rule 1, read with Section 151 of the Code of Civil Procedure, stands dismissed by the Civil Judge (Senior Divison), Una, District Una, Himachal Pradesh, in terms of impugned order dated 7.6.2016. 2. Having heard learned counsel for the parties, as also perused the record, this Court, in exercise of its power, under Article 227 of the Constitution of India, finds no ground to interfere. The order cannot be said to be perverse, erroneous or illegal, in any manner. 3. The Apex Court, in V. Rajendran and another vs. Annasamy Pandian (Dead) through Legal Representatives Iarthyayani Natchiar, (2017) 5 SCC 63 , has observed as under: "9. As per Order XXIII Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order XXIII Rule 1 (3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b) that is, existence of a "formal defect" or "sufficient grounds". The principle under Order XXIII Rule 1 (3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action. 10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors, (2000) 5 SCC 458 , it has been held that it is the duty of the Court to be satisfied about the existence of "formal defect" or "sufficient grounds" before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. 10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors, (2000) 5 SCC 458 , it has been held that it is the duty of the Court to be satisfied about the existence of "formal defect" or "sufficient grounds" before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the "formal defect" or "sufficient grounds", such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the "formal defect" or "sufficient grounds". "Formal defect" is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, mis-joinder of parties, failure to disclose a cause of action etc. "Formal defect" must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. 11. In terms of Order XXIII Rule 1(3) (b) where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit, the Court may permit the plaintiff to withdraw the suit. In interpretation of the word "sufficient grounds", there are two views: One view is that these grounds in clause (b) must be "ejusdem generis" with those in clause (a), that is, it must be of the same nature as the ground in clause (a) that is formal defect or at least analogous to them; and the other view was that the words "other sufficient grounds" in clause(b) should be read independent of the words a ''formal defect'' and clause (a). Court has been given a wider discretion to allow withdrawal from suit in the interest of justice in cases where such a prayer is not covered by clause (a). Court has been given a wider discretion to allow withdrawal from suit in the interest of justice in cases where such a prayer is not covered by clause (a). Since in the present case, we are only concerned with "formal defect" envisaged under clause (a) of Rule (1) sub-rule (3), we choose not to elaborate any further on the ground contemplated under clause (b) that is "sufficient grounds"." 4. Non-filing of site plan is not a defect, which cannot be cured. The Code of Civil Procedure does provide remedy to the plaintiff, which he has chosen not to take resort to. Multiplicity of litigation has to be avoided. Litigation these days is not cheap. It is time consuming. All these aspects have to be kept in mind. Plaintiff''s request needs to be turned down also for the reason that no specific grounds stand furnished or explained. Plaintiff is not a rustic villager, not having access to justice delivery system. He had been constantly pursuing the matter and it is not a case of total ignorance, as a consequence of attending circumstances. 5. Having perused the material on record, and in view of the law laid down by the Apex Court in V. Rajendran (supra), Court is of the considered view that no interference is warranted, more specifically when the order passed by the Court below cannot be said to be perverse, illegal or contrary to record. 6. Hence, the impugned order cannot be said to be unreasonable, illegal or perverse, warranting interference by this Court. 7. For all the aforesaid reasons, present Petition, devoid of merit, is dismissed. 8. Any observation made hereinabove shall have no bearing whatsoever on the merits of the main case. Parties, through their learned counsel, are directed to appear before the Court below on 3.10.2017. 9. Petition stands disposed of, so also pending application(s), if any. Interim order dated 22.8.2016 stands vacated.