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2017 DIGILAW 667 (HP)

Kashmir Singh v. State of Himachal Pradesh

2017-06-14

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. Heard. 2. By way of this petition, the petitioner has challenged the order passed by the Court of learned Civil Judge, Court No. 3, Una, in CMA No 292 of 2016, in Civil Suit No. 61/2015, vide which learned trial Court dismissed the application filed under Order 23, Rule 1 (3) of the Code of Civil Procedure (for short ‘CPC’) by the present petitioner whereby the petitioner (applicant therein) had prayed that he be permitted to withdraw the suit so filed by him with liberty to institute a fresh suit on the same cause of action. 3. A perusal of the application which was filed under Order 23, Rule 1 (C) of CPC before the learned trial Court claimed that the reasons which were mentioned in the said application were that initially the suit instituted by the applicant was for declaration to the effect that petitioner/plaintiff was owner in possession of the suit land as he had perfected his ownership over the same by way of adverse possession, but in the course of preparation of the replication, the plaintiff realized that the suit land in fact was part and parcel of old khasra No. 31/5/1 which had earlier been in the ownership and possession of his father, who had purchased the same from one Mohinder and due to preparation of illegal record by the field staff of Department of Settlement, area of ownership and possession of the plaintiff barring Khasra No. 31/5/1 had been disturbed and dislocated wrongly and illegally. In this background, application was filed with a prayer that as there was a formal defect which had crept on account of preparation of illegal record by the field staff of settlement department, accordingly, he be permitted to withdraw the civil suit with liberty to file fresh on the same cause in the interest of justice. 4. Application so filed by the petitioner was resisted by the respondent-State, who in their reply took the stand that the suit land was owned and possessed by the State of Himachal Pradesh. The state was having perfect title qua the suit land and as the case of the plaintiff was likely to fail on the ground of ownership by way of adverse possession, therefore, the application was not maintainable. 5. The state was having perfect title qua the suit land and as the case of the plaintiff was likely to fail on the ground of ownership by way of adverse possession, therefore, the application was not maintainable. 5. Learned trial Court vide impugned order rejected the application so filed by the present petitioner on the ground that under Order 23 Rule 1(3) of CPC, a suit can be permitted to be withdrawn with liberty to file fresh suit if there is some ‘formal defect’ in the suit. Learned trial Court on the basis of averments made in the application so filed by the present petitioner/plaintiff before it came to the conclusion that grounds pleaded therein by the applicant/plaintiff to the effect that some properties had been left out at the time of filing the suit was not a defect of “formal nature” but was a defect of “material nature”. On these bases, learned trial Court dismissed the application so filed by the present petitioner. 6. I have heard learned Counsel for the parties and also gone through the averments of the petition as well as the impugned order. In my considered view, learned trial Court has erred in not appreciating that under Order 23 Rule 1(3) of CPC, a suit can be permitted to be withdrawn with liberty to file fresh on the same cause not only on the ground of formal defect which has crept in the suit, but also if the Court is satisfied that there are sufficient reasons for allowing the plaintiff to file a fresh suit for the subject matter. In my considered view, the averments which have been made in the application so filed under Order 23, Rule 1 (3) of CPC, contained sufficient grounds for allowing the petitioner/plaintiff to withdraw the suit with liberty to institute a fresh suit on the same cause. In my considered view, the averments which have been made in the application so filed under Order 23, Rule 1 (3) of CPC, contained sufficient grounds for allowing the petitioner/plaintiff to withdraw the suit with liberty to institute a fresh suit on the same cause. The reasons which are mentioned in the application as to why petitioner intended to file fresh suit are that initially he had filed the suit for declaration on the ground that he had become owner in possession of the suit land by way of adverse possession but the suit land in fact was part and parcel of old khasra No. 31/5/1, which had earlier been in the ownership and possession of his father, who had purchased the same from one Mohinder and certain discrepancies had entered into in the revenue records which had acted to the prejudice of the plaintiff as on account of the preparation of illegal record by the field staff of settlement department, the area of ownership and possession of petitioner/plaintiff barring Khasra No. 31/5/1 had been disturbed and dislocated. In my considered view, the reasons which were so mentioned in the application in fact were sufficient reasons for having permitted the petitioner/plaintiff to withdraw the Civil Suit with liberty to file fresh suit on the same cause. Learned trial Court could have had compensated the respondent/defendant by imposing cost upon the plaintiff while granting the permission which was being sought by the plaintiff. However, rather than appreciating the ambit of Order 23, Rule 1(3) of CPC in its entirety, learned trial Court has taken a myopic view of the statutory provisions contained therein, which in my considered view has resulted in miscarriage of justice. Accordingly, this petition is allowed. Order dated 21.04.2017, passed by learned Civil Judge, Court No. 3, Una, in CMA No. 292 of 2016 is quashed and set aside. Application filed by petitioner under Order 23 Rule 1(3) CPC is allowed and the petitioner is permitted to withdraw the suit with liberty as prayed for subject to his paying cost of Rs. 5,000/- to the State by way of depositing the same in the Court at the time of filing of the fresh suit. The petition stands disposed of accordingly, so also pending miscellaneous applications, if any.