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2017 DIGILAW 1308 (GAU)

Debram Pegu v. Lakhinath Payeng

2017-09-18

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. G. Baishya learned counsel for the petitioner. None appears on call for the respondent. Notice has been duly served on all the respondent as per the order dated 27.06.2013 passed by the Lawazima Court. By filing this application under Article 227 of the Constitution of India the petitioner has challenged the order dated 21.09.2012 passed by the learned Civil Judge, (Junior Division No. 1), Lakhimpur, North Lakhimpur in Title Suit No. 29/2011. 2. By the said order the learned Trial Court had allowed the respondent/plaintiff to withdraw Title Suit No. 29/2011 with liberty to file afresh. The learned counsel for the petitioner has referred to a copy of the written statement/counter-claim filed by the petitioner/defendant before the learned Trial Court on 24.02.2011. 3. It is submitted that the counter-claim of the petitioner was on record and that even if the suit is permitted to be withdrawn, the counter-claim filed by the petitioner/defendant cannot be wished away. 4. The learned counsel for the petitioner further submits that the suit can be permitted to be withdrawn on two conditions as provided in Order XXIII Rule 1(3) which provides that the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) 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. 5. It is submitted that prior to filing of this application for withdrawal of the suit, the respondent/plaintiff had moved the Trial Court by filing an application for amendment, inter-alia to amend the schedule of the suit land. The learned Trial Court by order dated 17.7.2012 rejected the prayer for amendment arid thereafter on 10.09.2012 the respondents had submitted a petition No. 1054/12 to withdraw the suit 6. In the impugned order dated 29.1.2012, the learned Trial Court duly recorded the submission made by the respondent/plaintiff and by considering the rival submissions made in the matter, and the prayer of the plaintiff was allowed. It is submitted that the learned Trial Court failed to record any reason why it arrived at a finding that the suit was vitiated by a formal defect and, as such it is submitted that the impugned order suffers from the defect of non-consideration of the provision of Order XXIII Rule 1(3) CPC. 7. It is submitted that the learned Trial Court failed to record any reason why it arrived at a finding that the suit was vitiated by a formal defect and, as such it is submitted that the impugned order suffers from the defect of non-consideration of the provision of Order XXIII Rule 1(3) CPC. 7. The impugned order is also assailed on the ground that there is no recording of satisfaction that the suit must fail by reason of some formal defect and there is no satisfaction of the Court is recorded for allowing the respondent/plaintiff to institute a fresh suit for the subject matter of the present case i.e. T.S. No. 29/2011 as well as on the ground that no specific order was passed to proceed with the counter-claim. In support of his contention, the learned counsel for the petitioner has relied on the case of Rabizul Ali Laskar & Ors. Vs. Saibur Raza Laskar & Ors., 2002 (2) GLT 169. Paragraph 10 thereof on which reliance has been placed is extracted herein below:- "(10). In AIR 1957 Mad. 207 (Sambanda Naioker and others Vs. Ranganayaki Ammal and another) (supra) the Madras High Court while considering the import of Order 23 Rule 1(3)(a) and (b) CPC observed that in order to pass an order in favour of withdrawal of a suit a Court must be satisfied that sufficient grounds exist for the same. In the case reported in AIR 1986 Mad. 341 (A.V.S. Perumal Vs. Vadivelu Asari) (supra), it was observed that in order to succeed in an application filed under Order 23 Rule 1(3) CPC, the Court has to be satisfied about requirements mentioned therein. Their lordships held that it was not permissible to allow the plaintiff in that case to withdraw the suit with a liberty to file a fresh suit, as the prescribed requirements were not fulfilled. Their Lordships of the Orissa High Court in AIR 1989 NOC 193 (Orissa) observed that "formal defect" is a defect in form and procedure and not a defect in substance or touching the merits of the case and that the relief under Order 23 Rule 1(3) CPC was a discretionary one this Court in the case reported in 2001 (2) GLT 10 (Hirendra Debbarma and others Vs. Rebati Mohan Debbarma and Others (supra) was dealing with a situation where a suit was dismissed and the matter was pending in appeal and it was before the appellate forum that the application was filed for permission to withdraw the suit. The first appellate Court allowed the prayer setting aside the decree of the trial court. In second appeal before this Court, it was argued that the order of the first appellate was without jurisdiction. It was inter-alia observed by this Court in the decision that it was only in a case that the suit was liable to be dismissed on technical grounds for want of cause of action, defect of parties etc. that such a withdrawal was permissible. In AIR 1968 SC 111 (M/s. Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co.) (supra) the Apex Court was more particularly dealing with the scope of order 23 Rule 1 sub-rule (1) which did not involve any prayer for liberty to file a fresh suit, which in my opinion is not attracted to the facts to the present case. In AIR 2000 sc 2132 (K.S. Bhoopathy and others Vs. Kokila and others) (supra) the Apex Court laid down that it is the discretion of the court to grant the leave as mentioned in sub-rule 3 of Order 23 Rule 1 and such discretion has to be exercised by the Court with caution and circumspection. It was further held that the Court must be satisfied about the sufficiency of the grounds, as mentioned in Clause (b) of sub-rule (3) for allowing the plaintiff permission to withdraw the suit with liberty to institute a fresh suit. It was held that the Court was to discharge the duty mandated under the provision of 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." 8. Having heard the submissions made by the learned counsel for the petitioner, this Court finds that although the power under Order XXIII Rule 1(3) CPC was held to be discretionary, in the case of Rabizul Ali Laskar and others (Supra) it has been further held any defect which touches the root of the suit was liable to be dismissed. 9. This Court by relying on the case of K.S. Bhoopathy & Ors. Vs. 9. This Court by relying on the case of K.S. Bhoopathy & Ors. Vs. Kokila & Ors., AIR 2000 SC 2132 had held in the case of Rabizul Ali Laskar and others (Supra) that the discretion of the Court has to be exercised with caution and circumspection, it was further held that the Court must be satisfied about the sufficiency of the grounds, as mentioned in Clause (b) of sub-rule (3) for allowing the plaintiff permission to withdraw the suit with liberty to institute a fresh suit and it was held that the Court was required to discharge its duty as mandated under the provisions of Code upon 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. 10. In the same case of Rabizul Ali Laskar (Supra), the non-joinder of necessary parties was also found to be a formal defect which touches the root of the suit and therefore, it was held that if a necessary party is not arrayed to the suit, the suit has to be dismissed. 11. Therefore, considering the same this Court is inclined to agree to the submissions made by the learned counsel for the petitioner. As the learned Trial Court did not record its satisfaction as to the existence of ground for which it was imperative to allow withdrawal of the suit with a liberty to file afresh, and further having observed that the counter-claim filed by the petitioner was on record, and there is no order by the learned Trial Court to proceed with the counter-claim, the counter-claim of the petitioner was put into oblivion without taking it to its logical conclusion. 12. In view of the discussions above, this Court is inclined to hold that the impugned order dated 21.09.2012 passed by the learned Court of Munsiff No. 1, Lakhimpur, North Lakhimpur suffers from jurisdictional error. Therefore, the said order is set aside. The matter is remanded back to the said learned Court for fresh decision on the matter. 13. As the power under Order XXIII Rule 1 has been held to be discretionary the learned Trial Court shall exercise the said power with circumspection as held in the case of Rabizul Ali Laskar and others (Supra) while passing orders afresh. The matter is remanded back to the said learned Court for fresh decision on the matter. 13. As the power under Order XXIII Rule 1 has been held to be discretionary the learned Trial Court shall exercise the said power with circumspection as held in the case of Rabizul Ali Laskar and others (Supra) while passing orders afresh. The learned Trial Court shall also keep in mind the existence of counterclaim of the respondent. 14. With the above observations this application stands allowed. The parties are left to bear their own costs. The petitioner is directed to appear before the learned Court of Civil Judge, (Junior Division No. 1), Lakhimpur, North Lakhimpur on 15.11.2017 without any further notice on the appellant, and by producing a certified copy of this order, shall seek further instructions from the said learned Court.