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2018 DIGILAW 1105 (GAU)

W. THANTHIANGA v. STATE OF MIZORAM

2018-07-26

SONGKHUPCHUNG SERTO

body2018
JUDGMENT : S. SERTO, J. 1. Heard Mr. B. Lalramenga, learned counsel appearing for the petitioner. Also heard Mr. Rosangzuala Ralte, learned Government Advocate for the respondent Nos. 1 to 7 and Mr. Zoramchhana, learned counsel for the respondent No. 8. 2. This is a petition under Article 227 of the Constitution of India directed against the impugned Order dated 11.08.2017 passed by the Senior Civil Judge, Champhai District in Civil Suit No. 2/2015. The brief facts leading to the filing of this revision petition as submitted by the learned counsel of the petitioner are stated as follows:- In the year 2011, the petitioner herein filed Declaratory Suit No. 1 of 2011 before the learned Senior Civil Judge, Champhai District praying for declaration of LSC No. W-1 of 2002 issued in the name of the respondent No. 8 as null and void claiming that the said LSC was issued over his own land covered by House Site Patta No. 1/1975 over the disputed land. The suit was disposed of on 06.03.2012 in favour of the present petitioner. In the year 2012, the respondent No. 8 filed an appeal which was registered as RFA No. 24/2012 in this High Court. After hearing the parties, the same was disposed of on 25.09.2012 by remanding back the case to the Court of the Senior Civil Judge with the following orders:- "Having heard the learned counsel appearing for the parties, this Court therefore directs that a fresh trial of the Declaratory Suit filed by the plaintiff/respondent No. 1 be held again by impleading the legal representatives of the Defendant No. 4, Shri H. Vanlalauva s/o Sangkhuma (L), Ex-Minister, r/o Chhinga Veng, Aizawl and it will be open for any of the legal representatives of the Defendant No. 4, Shri H. Vanlalauva to make any application before the learned Senior Civil Judge, Champhai District under Order 22 Rule 4 sub-rule (3) CPC for declaring that the suit stands abated on the ground that the plaintiff did not file any application for impleadment of the legal representatives of the Defendant No. 4, within time, apart from other pleas that may be taken up by any of the parties on any issue. Accordingly, the present appeal stands allowed, as observed above, by setting aside the judgment and order dated 06.03.2012 passed by the learned Senior Civil Judge, Champhai District in Declaratory Suit No. 1 of 2011. Accordingly, the present appeal stands allowed, as observed above, by setting aside the judgment and order dated 06.03.2012 passed by the learned Senior Civil Judge, Champhai District in Declaratory Suit No. 1 of 2011. The LCR may be sent back immediately." 3. While the case was pending before the learned Senior Civil Judge, Champhai District, the same was withdrawn by the petitioner on 20.11.2013 with the liberty to file a fresh suit. Accordingly, in the year 2015, a fresh suit being Civil Suit No. 2/2015 was instituted in the Court of the Senior Civil Judge, Champhai District without compliance of the provision of Section 80 of Code of Civil Procedure (CPC). Soon thereafter, the petitioner also filed subsequent pleadings explaining as to why provision of Section 80 was not complied with. However, realizing that the mandatory provision of Section 80 of the CPC has to be complied with since Government respondents are involved in the case filed another application praying for permission to withdraw the suit so that he may file a fresh suit after compliance of the provision of Section 80 of CPC. On 11.08.2017, the learned Civil Judge disposed of the application by rejecting the same. Aggrieved, the petitioner has come to this Court by filing this petition under Article 227 of the Constitution of India praying for quashing and setting aside of the impugned order and to direct the learned Civil Judge to allow the petitioner to withdraw the Civil Suit No. 2/2015 with a liberty to file a fresh suit after compliance of the provision of Section 80 of CPC. 4. Mr. B. Lalramenga, learned counsel for the petitioner submits that the petitioner was under the impression that since he was allowed to withdraw the earlier suit with liberty to file a fresh suit, compliance of provision of Section 80 of CPC may not be necessary. Therefore, a subsequent pleading was filed explaining the reason why Section 80 will not be attracted in that case. However, on careful reexamination of the case, the petitioner came to realize that the provision of Section 80 being mandatory, he would be putting his case in peril if the provision of the same section is not complied with. Therefore, he decided to file the application praying for leave to withdraw the same with liberty to file afresh after compliance of the provision of Section 80 of CPC. 5. Therefore, he decided to file the application praying for leave to withdraw the same with liberty to file afresh after compliance of the provision of Section 80 of CPC. 5. The learned counsel further submitted that since the defect in the suit that is, not giving notice under Section 80 is a formal defect, the application filed under Order 23 Rule 1 Sub-Rule (3) Clause (a) ought to have been allowed to enable the petitioner to comply with the mandatory provision of Section 80 so that the matter in dispute may be decided on merit. In support of his submission, the learned counsel cited the decision of the Hon'ble Supreme Court as reported in (2017) 5 SCC 63 , particularly, paragraphs 10 and 11 of the same. The contents of the two paragraphs are given here below:- "10. In K.S Bhoopathy v. Kokila, 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 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 23 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, misjoinder of parties, failure to disclose a cause of action, etc. "Formal defect" must be given a liberal meaning which cannotes various kinds of defects not affecting the merits of the plea raised by either of the parties. 11. "Formal defect" must be given a liberal meaning which cannotes various kinds of defects not affecting the merits of the plea raised by either of the parties. 11. In terms of Order 23 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 words "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). 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"." 6. The learned counsel further submitted that the provision of Section 80 is to subserve an advance the cause of justice rather than to defeat. Therefore, the petitioner should have been given the liberty to withdraw the suit so that his suit is not barred by the same provision. In support of his submission, the learned counsel cited the judgment of the Hon'ble Supreme Court as reported in (1984) 3 SCC 46 at paragraph 17 of the judgment. The contents of paragraph 17 of the judgment are extracted here below:- "Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. In Sangram Singh v. Election Tribunal, Kotah, Vivian Bose, J. in his illuminating language dealing with the Code of Civil Procedure said: It is procedure, something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties ; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." 7. Mr. Zoramchhana, learned counsel appearing for the respondent No. 8 submitted that the petitioner had already submitted subsequent pleading in which he had explained as to why the provision of Section 80 will not come into play in his case. Therefore, he should have waited the result of the petition rather than file the application for leave to withdraw the suit with permission to file fresh suit. Further, the learned counsel submitted that the petitioner is blowing hot and cold because in his subsequent pleading, he had stated that the provision of Section 80 will not come into play in his case, whereas, in the application which was dismissed by the learned Senior Civil Judge, he had stated that the provision of Section 80 will be applicable. The learned counsel also submitted that invoking of the jurisdiction under Article 227 of the Constitution of India, under the facts and circumstances of the case, may not be called for at this stage. The learned counsel went further and submitted that the power under Article 227 should be exercised sparingly and not in every case. In support of his submission, he cited the judgment of the Hon'ble Supreme Court reported in (1983) 4 SCC 566 , particularly, at paragraph 7 of the Judgment. The contents of the paragraph 7 of the judgment are extracted here below:- "7. In support of his submission, he cited the judgment of the Hon'ble Supreme Court reported in (1983) 4 SCC 566 , particularly, at paragraph 7 of the Judgment. The contents of the paragraph 7 of the judgment are extracted here below:- "7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior court or tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision." The learned counsel also relied on the judgment of this High Court reported in 2012 (4) GLT 906, particularly, at paragraph 23. The contents of paragraph 23 of the judgment are extracted here below:- "23. According to this Court, the High Court can exercise its power under Article 227 of the Constitution of India only when the Court subordinate to it passed an order in grave dereliction of duty or flagrant violation of law or the order is fully perverse and stands on the way of justice and that also has to be exercised most sparingly and not in each and every case, unless the petitioner makes out a case of grave injustice. In the instant case, the Executing Court did not visit beyond the decree/award, as the Executing Court correctly took the view, inter alia, that interest on solatium is permissible and more so, the award includes the solatium and when interest is awarded by the Reference Court, the award has to be considered with interest also on solatium." 8. Mr. Rosangzuala Ralte, learned Government Advocate appearing for the respondent Nos. Mr. Rosangzuala Ralte, learned Government Advocate appearing for the respondent Nos. 1 to 7 submits that the provision of Section 80 would not be attracted in this case as the Government respondents are already aware of the case filed by the petitioner and they had already submitted their written statement. Therefore, it appears that this case was filed only to cause delay proceedings of the civil suit. 9. I have considered the submissions of the learned counsels appearing for the parties keeping in view the facts and circumstances of the case and the provisions of law applicable. 10. Perusal of the provision of Section 80 and consideration of the same in its entirety would show that if a suit wherein Government is involved is filed but without prior service of notice, the suit can be dismissed for non-compliance of the provision. However, if the plaintiff had taken leave of the Court to file such suit by satisfying the Court that urgency is involved, therefore, compliance of Section 80 may be exempted or waved, the Court may allow such suit to be filed without serving prior notice to the Government respondents. In case the Court is not satisfied that such facts and circumstances necessitating waving of the serving of prior notice does not exist, the Court may return the suit to be file after service of notice to the Government respondents. 11. Another situation may arise when a suit has already been filed but without serving notice to the Government as required under Section 80 and without leave of the Court as stated above. In that case, the plaintiff may file an application under Order 23 Rule 1 Sub-Rule (3) of CPC. In such a situation, if the Court is of the opinion that for reason of such defect, the suit is bound to be dismissed, it may allow the plaintiff to withdraw the suit on such terms as it thinks fit with liberty to institute a fresh suit in respect of the same subject matter. In such a situation, if the Court is of the opinion that for reason of such defect, the suit is bound to be dismissed, it may allow the plaintiff to withdraw the suit on such terms as it thinks fit with liberty to institute a fresh suit in respect of the same subject matter. From the provisions of law as stated above, it is quite clear that the duty of the Court was to examine whether the suit was liable to be dismissed for non- compliance of formal defects like the service of notice as required under Section 80 of CPC and, if it is satisfied that the suit would be dismissed for such non-compliance, allowed the prayer for withdrawal with liberty to institute a fresh suit. However, on perusal of the impugned judgment and order, it appears that the Court was more concerned about the delay in the proceedings of the case rather than considering the provisions of law under which the prayer of the petitioner should have been considered. As rightly pointed out by the learned counsel of the petitioner, provisions of procedural laws should be use to subserve and advance the cause of justice and not to scuttle it. Therefore, the prayer of the petitioner ought to have been allowed so that the dispute between the parties is decided on merit and the same is put to rest. 12. In view of the above stated reasons, the impugned order is quashed and set aside and the learned Trial Court is directed to return the plaint with leave to file a fresh after complying with the provision of Section 80 of CPC. 13. Accordingly, the present Civil Revision Petition stands disposed of. No cost.