Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 994 (JK)

Ali Mohammad Rather v. Muhammad Ismail Rather

2017-11-10

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner has filed present revision petition against the order of court below thereby challenging the order dated 3.12.2015, by virtue of which his application filed under order 23 Rule 1 (3) CPC for withdrawal of suit with permission to file fresh suit before court, has been dismissed. 2. In memo of revision petition it has been stated that the reasons mentioned for withdrawal of case/suit is on the basis of misjoinder of parties, contradictory pleading and a vital formal defect due to which petitioner/plaintiff may fail in suit. That it is pertinent to reproduce the para (8) of the plaint which has compelled the plaintiff (Petitioner) for withdrawal of the suit. In Para (8), of application filed before court below for withdrawal of suit it has been stated That since the land in question measuring 1 kanal 1 marla bearing khasra No. 676 situated at K.P. Bagh is recorded in the possession of the plaintiff in the revenue records, the defendants are forcibly going to construct a tower on the same, the defendants are thereby going to dispossess the plaintiff from the said land. The defendants have already constructed plinth forcibly on a portion of the said land a few days before institution of the suit and this way they have physically dispossessed the plaintiff from the same. The defendants are going to construct the said tower over a portion of 11 marlas of the land. 3. That above para (8) in the plaint was inserted by way of amendment, as the suit of the petitioner was simple injunction suit, in other words due to inadvertence of the advocate the plaint has become contradictory one with defects. That plain reading of para (8) of the plaint, the existence and pendency of injunction suit now amended has totally abrushed it as if no suit was pending, the amendment should have been for demolition of the tower by issuance of mandatory injunction. But ill drafting on the basis of ill advice of the advocate, the suit of the petitioner was made defective one, as such the plaintiff has to fail in the suit in this situation. 4. That one of the formal defect is misjoinder of parties, as respondent no. 1 is a co-sharer and he was a necessary or proper party in the suit. 4. That one of the formal defect is misjoinder of parties, as respondent no. 1 is a co-sharer and he was a necessary or proper party in the suit. No doubt petitioner has a right to strike his name by a motion under order 1 Rule 10 CPC, but at the same time the allegations in the plant will remain there and those will adversely affect the plaintiffs cause as such the withdrawal was sought on this account also. 5. That the trial court has totally ignored these aspects of the case and has misinterpreted law in a way to cause inconvenience to the petitioner. 6. That the petitioners application was clear and formal defect with sufficient grounds was clear. But the trial court has rejected the application that misjoinder has not been shown by the petitioner, though it was argued in detail. Secondly the ld trial did not appreciate the para (8) of the plaint a vital defect, on the basis of ill advice of the advocate, otherwise this contradictory is going to cause failure of the suit of the plaintiff (petitioner). 7. That lastly the trial court has given opinion that How he wants to open the suit afresh without stating as to what he want to add in the fresh suit It is submitted that application was for withdrawal one and not amendment, in nut shell the ld trial court has dismissed the withdrawal application considering it as amendment application. As a matter of fact there is no such provision in Order 23 Rule 1 (3) CPC in case of withdrawal, what next the applicant should do. On this ground also the order passed by the ld trial court is not sustainable. 8. That the contents of the withdrawal application were elaborated and explained by arguments, but the trial court has not appreciated the same. In that situation the trial could should have asked for written arguments, for clarification so as to appreciate the matter in right perspective. That trial court has not even appreciated the law to decide the cause correctly. 9. I have considered the rival contentions of parties. I have also gone through the law on the subjects. 10. In that situation the trial could should have asked for written arguments, for clarification so as to appreciate the matter in right perspective. That trial court has not even appreciated the law to decide the cause correctly. 9. I have considered the rival contentions of parties. I have also gone through the law on the subjects. 10. Order 23 reads as under: ORDER XXIII Withdrawal and adjustment of suits Withdrawal of suit or abandonment of part of claim (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub rule (1) shall be accompanied by an affidavit of the next friend and also, if he minor of such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is in his opinion, for the benefit of the minor or such other person. (3) Where 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; it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh sit in respect of the subject matter of such suit or such part of the claim. 11. 11. Bare perusal of this provision, it is evident that liberty to file fresh suit on the same cause of action is discretion of Court; but discretion has to be exercised where Court is satisfied that suit is filed with a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same cause of action; Court has also to take into consideration that such permission may result in annulment of a right vested in the defendant or even a third party; Unless there exists proper grounds for granting permission for withdrawal of suit with leave to file fresh suit by the plaintiff, the relief cannot be granted for merely asking for. Court is under the duty mandated to take into consideration the 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. However plaintiff has defeasible right to withdraw the suit unconditionally. Now coming to the under challenge of court below, the relevant extract of order of court below reads as under:- The plaintiff has moved the application on two counts one is mis-joinder of parties and another is ill drafting of plaint. Although the applicant in his application has claimed that there is mis-joinder of parties but he has failed to reveal as to how there is a mis-joinder of parties. The plaintiff has also claimed that there was ill advice of the Advocate while drafting the plaint. In the application the ld counsel is again silent as to how the plaint has been ill drafted at that time. He has failed to reveal as to what are the defects which have led him to file the present application. I rely my hands on the judgment on which the ld. counsel for the plaintiff has relied AIR 2005 O Supreme (SC) 1944 because in that judgment the Apex court has rejected the application of the plaintiff under Order XXIII Rule 1(3) on the grounds that the plaintiff must satisfy the Court 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 Supreme Court has stressed on the Court to discharge the duty mandated under the provisions of the court after taking into consideration all relevant aspects of the matter including the desirability of permitting the party to support a fresh round of litigation on the same cause of action. The court has further laid down that unsuccessful plaintiff can not be permitted to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate and also make the defendants to suffer by losing the advantage of adjudication of the dispute by the court. I also rely my hands on the judgment on which ld. counsel for the defendants has relied 1985 0 Supreme(Ori) 3600 in which the court has held that even if the expression formal defects will be wide and liberal meaning, but that does not mean that every kind of defect which effects merits of the case can be made base for withdrawing the suit with leave to file a fresh suit. It has impressed that the application can not be allowed for withdrawal of the suit with permission to file fresh one in case the same will effect the merits of the case or well strike at the root of the plaintiffs case. The plaintiff has filed the present suit in the year 2005 and from the perusal of the suit reveals that suit is pending before the court from the last more than ten years. The plaintiff has moved number of applications and even has gone to District Court and High Court with the Revision and the Appeal. First of all the applicant has lost the application for temporary injunction. The plaintiff has assailed the order of rejection of his application before District Judge who has dismissed the Appeal and has upheld the order with regard to the rejection of the application for temporary injunction. The plaintiff thereafter has filed an application for amendment of plaint which was allowed by the court and thereafter the plaintiff has also amended the plaint in the year 2009. The plaintiff now with the present application wants the withdrawal of the suit when he has already led his evidence and even the defendants have partly led their evidence. The plaintiff thereafter has filed an application for amendment of plaint which was allowed by the court and thereafter the plaintiff has also amended the plaint in the year 2009. The plaintiff now with the present application wants the withdrawal of the suit when he has already led his evidence and even the defendants have partly led their evidence. The suit is at its final stage and the plaintiff wants to start with a fresh suit and waste the time which has been spent not only by the court but also by the defendants while contesting the case of the plaintiff. The plaintiff in the application also has not made out a clear case as to how there are sufficient grounds for allowing the plaintiff to file a fresh suit. The application has claimed that there is ill drafting of plaint by Advocate but the Apex Court in a judgment 2007 0 Supreme Court (AP) 32166 has laid down at para 5 of the judgment that the discretion under Order 23 CPC Rule (1) (3) (a) CPC can be exercised by the courts when there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of the claim. In the present case no sufficient grounds have been pleaded except ill drafting of Advocate and the petitioner has an apprehension that he will fail in the present suit but a failure in a suit cannot be the sole ground on which the discretion can be exercised by the court under Order XXIII Rule 1(3) (b). The applicant/plaintiff in the present application has also mentioned that the suit will fail but has not stated in his application as what are the sufficient grounds for which he will be allowed to file a fresh suit with permission to withdrawn the present one. Moreover the plaintiff is litigating from the last ten years and has even failed at the time of temporary injunction application thereby he has failed to show that he is having a prima facie case. The plaintiff has also failed to show as to how there is mis-joinder of parties and how there is ill advise of the advocate while drafting the amended plaint and as to how the amended plaint is defective one. The plaintiff has also failed to show as to how there is mis-joinder of parties and how there is ill advise of the advocate while drafting the amended plaint and as to how the amended plaint is defective one. Even the file reveals that the plaintiff at every time is changing his stands in the un-amended plaint his stand is different as that of amended plaint. Now he wants to open the suit afresh without stating as to what he want to add in the fresh suit. Thus for the foregoing reasons the plaintiff has failed to make out a case under Order XXII Rule 1 (3) CPC. Hence the application is dismissed. However, due to peculiar circumstances there shall be no order as to costs. Application is accordingly disposed of and shall form part of the main file. 12. Bare perusal of this order it is evident that, court below has passed well-reasoned order, based on established principle of law. Counsel for petitioner except arguing the matter, has not placed any law in support of his contentions. Even he has failed to counter the law applied by court below. I have also gone through the contents of application filed by petitioner before court below for withdrawal of suit. Except stating that his suit may be dismissed as contradictory pleadings have been taken, there is nothing on record. At one place petitioner has stated that he has raised the plinth and at one place has stated that, he has been disposed by defendants, a few days before filing of suit. The plaintiff is not sure as to what relief he requires. Further the suit has been filed on 7.2.2005 and even plaintiff/petitioner has completed his evidence on 5.2.2014; even part statement of defendant no.2 has been recorded as is evident from interim order dated 23.3.2015. 13. It is to be observed that the Courts are flooded with lakhs of cases and each case consumes considerable time to reach finality. Litigants are eagerly waiting for disposal of their cases. 13. It is to be observed that the Courts are flooded with lakhs of cases and each case consumes considerable time to reach finality. Litigants are eagerly waiting for disposal of their cases. Such being the position of the Courts, allowing a party to prosecute the suit filed by him till it reaches its fag end and thereafter grant of permission to withdraw the suit with liberty to file fresh suit on the same cause of action leads to multiplicity of proceedings and the Courts are not in a position to afford trying such multiple proceedings in respect of same cause of action unless special circumstances warrant. Having regard to the precious time spent for the trial of the suit, the rejection of application is justified. 14. The revision Petition Stands Dismissed. File of trial court be sent back along with this order. Parties to appear before trial court on 24.11.2017.