Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 344 (GAU)

Bharat Chandradas v. Bhogiram Medhi

2017-03-17

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : Prasanta Kumar Deka, J. Heard Mr. S.J. Sarma, learned counsel appearing on behalf of the petitioner/respondent and also heard Mr. Sheeladitya, learned counsel appearing on behalf of the opposite party/appellant. 2. This is an application under Order 23, Rule 3 (a) and (b) R/W Section 151 of the CPC whereby the petitioner/respondent has sought for withdrawal of Title Suit No. 53/03 pending in the Court of Civil Judge No. 3 Kamrup, Guwahati with liberty to file a fresh suit and/or alternatively be pleased to pass order for analogous trial of Title Suit No. 53/03 pending in the Court of Civil Judge No. 3 and Title Suit No. 110/06 pending in the Court of learned Civil Judge No.1. 3. The petitioner as the plaintiff filed Title Suit No. 58/2003 against the present/opposite party as the defendant praying for declaration of his right title and interest and confirmation of possession and also for permanent injunction. The defendant/opposite party raised the plea in his written statement that the plaintiff had no possession over the suit land along with the plea that the suit was bad for non-joinder of necessary parties and as such prayed for dismissal of the suit of the plaintiff/petitioner. During the pendency of the suit, the petitioner as the plaintiff in the Title Suit No. 58/2003 filed an application for amendment of the plaint on 27.11.2003 to introduce the prayer for recovery of possession of the suit land which was rejected by the Trial Court as the evidence of the parties in the said suit had already started. The plaintiff/petitioner did not challenge the said order of rejection of amendment petition and went ahead with the suit. The Trial Court vide Judgment dated 30.09.2005 dismissed the suit on the ground that the same was barred by law of limitation and the suit was bad for non-joinder of necessary parties. The petitioner thereafter preferred Title Appeal No. 10/2005 and the court below vide judgment dated 30.06.2009 set aside the judgment and decree passed by the Trial Court and remanded the same to the Trial Court to decide the issues and pass a fresh judgment. The petitioner thereafter preferred Title Appeal No. 10/2005 and the court below vide judgment dated 30.06.2009 set aside the judgment and decree passed by the Trial Court and remanded the same to the Trial Court to decide the issues and pass a fresh judgment. On such remand, the Trial Court vide judgment and decree dated 29.11.2010 dismissed the suit holding that the present petitioner had failed to establish that he got possession of the suit land at the time of execution of the sale deed and held that the plaintiff had no possession over the suit land. It was also held that the declaration of the Title of the petitioner also could not be granted as there was no further relief for recovery of khas possession. 4. Being aggrieved the petitioner again preferred Title Appeal No. 05/2011 in the Court of Additional District Judge No. 1 Kamrup at Guwahati and the said court vide judgment dated 16.10.2015 set aside the judgment passed by the Civil Judge No. 3 Kamrup at Guwahati in Title Suit No. 58/2003 with a direction for a fresh trial and also granted the leave to the petitioner to seek for the relief of recovery of khas possession of the suit land and directed the Trial Court to consider the same during the re-trial of the suit. 5. The present opposite party preferred the connected SAO 02/2016 as the appellant thereby challenging the judgment and order dated 16.10.2015 passed by the Additional District Judge No. 1, Kamrup (M) passed in Title Appeal No. 5/2011 remanding the case for fresh trial. The said appeal has already been admitted vide order dated 01.04.2016 and the petitioner as the respondent had already entered appearance in the said appeal. The petitioner who is the respondent in the said appeal has preferred this petition at this appellate stage for withdrawal of the Title Suit No. 58/2003 after 14 years of litigation. It is also pertinent to mention here that the petitioner had filed Title Suit No. 110/2006 because of accrual of fresh cause of action after filing of Title Suit No. 58/2003 and in the said suit the evidence of the plaintiff side had already been completed. Under such circumstances and behind such backdrop this petition is filed by the petitioner for withdrawal of T.S. 58/2003 with a prayer for liberty to file a fresh suit. 6. Mr. Under such circumstances and behind such backdrop this petition is filed by the petitioner for withdrawal of T.S. 58/2003 with a prayer for liberty to file a fresh suit. 6. Mr. Sarma submits that there are formal defects in Title Suit No. 58/2003 inasmuch, as held by the Trial Court the suit is hit under section 34 of the Specific Relief Act, 1963 as the suit is devoid of any consequential relief based on the declaration of right, title and interest. It is also submitted that the suit is bad for non-joinder of necessary parties and owing to such defects which are formal in nature, the plaintiff cannot at all be successful in the Title Suit No. 58/2003 and that would cause injustice to the plaintiff/petitioner in the event of this petition is disallowed. It is also submitted that the defects are technical in nature and if the petition is allowed and liberty is granted as prayed for no injury would be caused to the opposite party/appellant inasmuch as no right/rights has crystallized which would cause any loss to the opp. party. It is also submitted that the opposite party/appellant could be duly compensated in terms of money. As such the petition is to be allowed along with liberty so prayed for. 7. Per contra, Mr. Sheeladitya, learned counsel appearing on behalf of the appellant/ opposite party submits that this petition for withdrawal with leave cannot be considered at this stage inasmuch as this is an appeal preferred by the defendant in Title Suit No. 58/2003 which itself goes to show that he had gained advantage on the dismissal of the suit of the plaintiff/petitioner and as such he has preferred this appeal and by filing this petition for withdrawal with leave for filing fresh suit the petitioner, who is the plaintiff in Title Suit No. 58/2003 is trying to disrobe the advantage/advantages gained by the defendant in Title Suit No. 58/2003. 8. On the submission of learned counsel of the petitioner, Mr. Sheeladitya submits that the defects are not formal in nature nor technical in nature inasmuch as knowing fully well that the application for amendment inserting the relief for recovery of possession was rejected in the year 2003 itself the petitioner allowed the suit to continue further without filing a petition for withdrawal with liberty to file it afresh in the Trial Court itself. Not only that the petitioner also preferred the First Appeal on two occasions knowing fully well that the relief of recovery of possession was not sought for and under such circumstances the said defect cannot be termed to be formal defect inasmuch as the subsequent suit is pending and the petitioner is apprehensive that in the event of pendency of this suit i.e. 58/2003 he cannot succeed in the subsequent suit and that itself is an advantage for the present opposite party/appellant. That advantage cannot be compensated in terms of money and the right to file the appeal cannot be snatched away from the present appellant/opposite by way of filing this petition. Accordingly, under such circumstances this petition is liable to be dismissed. 9. In K.S. Bhoopathy and Others v. Kokila and Others reported in (2000) 5 SCC 458 , the Hon'ble Apex Court in para 13 held as follows "Order 23, Rule 1 of 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 a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the court regarding existence of the circumstances justifying the grant of 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; first where the Court is satisfied that a suit must 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 23, 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 a fresh 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 23, Rule 1 (3) CPC for exercise of the discretionary power in permitting the withdrawal of 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. The Hon'ble Apex Court in the said case (supra) and from the ratio laid down it is apparent that the purposes of entertaining an application under Order 23, Rule 1 CPC and the Rule 1 with sub-rule 3 are not at par and the discretion in granting the leave under Order 23 sub-rule 3 of Rule 1 lies with the Court and that discretion must be exercised with caution and circumspection. Further if the said petition is filed at the stage of appeal the Court must be far more cautious in application of the discretion inasmuch as the unsuccessful plaintiff could avoid the decree against him and sought for a fresh adjudication of the controversy on a clean slate. 11. Mr. Sarma submits that there is no judgment and or/decree outstanding against the petitioner and as such the discretion could be applied in favour of the petitioner and no disadvantageous position would be faced by the defendant/opposite party. Mr. Sarma further submits that as in the plaint of the petitioner there is no prayer for recovery of possession and the defendant respondent has taken the plea of non-joinder of necessary parties the suit is liable to fail because of the said technical and formal defects so the learned counsel submits that this petition be allowed with the leave to institute the suit afresh. Such leave to file the suit afresh would cause no loss, injury or inconvenience to the to the present appellant/opposite party. 12. Mr. Sheeladitya, learned counsel appearing on behalf of the respondent submits that it would be needless to mention that the dismissal of the Title Suit No. 58/2003 is itself an advantageous position gained by the present opposite party and such advantage is so intense that the opp. party as the appellant had challenged the order of remand by the First Appellate Court and knowing fully well of the said advantageous position by the present respondent, the petitioner in order to nullify such advantageous position of the appellant/opp.party has come up with this petition after long 14 years of litigation thereby wasting the valuable time of the Court. Under no circumstances this petition could be allowed thereby throwing back the present respondent to the disadvantageous position. So Mr. Sheeladitya submits that the petition is liable to be rejected. 13. Considered the submissions of both the learned counsels, also considered the ratio laid down by the Hon'ble Apex Court in the reported Judgment relied by the petitioner (supra). Mr. Sarma, learned counsel for the petitioner mainly submits that the Title Suit No. 58/2003 is liable to fail mainly for the lack of prayer for recovery of possession and for the issue of non-joinder of the parties as raised by the respondent in their written statement. Mr. Mr. Sarma, learned counsel for the petitioner mainly submits that the Title Suit No. 58/2003 is liable to fail mainly for the lack of prayer for recovery of possession and for the issue of non-joinder of the parties as raised by the respondent in their written statement. Mr. Sarma termed the said omission in the plaint of the Title Suit No. 58/2003 to be a mere formal defect. The said submission of Mr. Sarma cannot be accepted inasmuch as a formal defect is a defect which even if given a wide and liberal interpretation would cover those defects only which does not effect the merit of the case. Non-joinder of necessary parties cannot be considered to be a formal defect because it directly goes to the merit of the suit. On the other hand, the petitioner filed a petition for amending the plaint seeking to introduce the relief of recovery of possession in the plaint which was rejected by the Trial Court. However, the order of rejection of the amendment petition was never taken up to the higher courts challenging the rejection order by the Trial Court. Instead the petitioner submitted to the jurisdiction of the Trial Court and participated in the full trial and thereafter on dismissal of the suit, appeal was preferred whereby the First Appellate Court remanded back the suit to the Trial Court for fresh disposal. The Trial Court again dismissed the suit and thereafter another appeal was preferred and the said First appellate court also remanded the matter back to the Trial Court for re-trial. Thus the continuation of the suit by the petitioner had consumed much valuable time of the Courts. The non-introduction of the relief of recovery of possession in the plaint cannot be termed to be a formal defect inasmuch as it goes to the root of the merit of the case which is amply proved by the petitioner in preferring the amendment petition which was rejected by the Trial Court. So the submission of Mr. Sarma that the defects so mentioned in this petition are formal defects cannot be accepted. So the submission of Mr. Sarma that the defects so mentioned in this petition are formal defects cannot be accepted. On the other hand filing of the Second Appeal against the remand order of the First Appellate Court by the present opposite party who is the defendant in Title Suit No. 58/2003 itself goes to show the advantage gained by the opposite party on the dismissal of the suit of the plaintiff/petitioner. Further the valuable time of the Court which has been consumed by the said Title Suit No. 58/2003 cannot be allowed to be wasted. Accordingly, this petition is rejected and I.A. (Civil) 1002/2016 is disposed of.