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2018 DIGILAW 1349 (GAU)

Ketaki Hotel Cum Rajdeep v. Tina Dowerah

2018-09-13

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. S.N. Sarma, the learned senior advocate for the petitioners as well as Mr. D.C.C. Phukan, the learned advocate for the respondents. 2. By this application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 28.02.2018, passed by the learned Civil Judge, Dibrugarh in T.S. No. 3/2017, by which the petition No. 1055/18 dated 03.01.2018 filed by the respondents- plaintiffs under the provisions of Order XXIII Rule 1(3)(a) and (b) was allowed by allowing the respondents to withdraw the suit with liberty to institute the suit afresh. 3. The petitioners are the defendants in TS No. 3/2017, which was filed by the respondents- plaintiffs for declaration, recovery of possession and permanent injunction. In the plaint, it was projected that the husband of the respondent No.1 was the owner of a plot of land measuring 8B-0K-3L (B-K-L is short of Bigha, Katha and Lecha) covered by Dag Nos. 115, 118, 119, 120 and 136 of P.P. No. 58 of Amolapatty Gaon, Ward, under Dibrugarh Town, Mouza-P.S. and Dist. Dibrugarh, Assam, described in Schedule-A below. The respondents No.2 and 3 are the daughters of the respondent No.1. It was stated that the predecessor-in-interest of the respondents had sold land measuring 4B-3K-18L during his lifetime in Dag Nos. 115, 118, 119 and 120 and he was in actual physical possession of remaining land measuring 3B-2K-5L. It was stated that the petitioner No.2 had purchased 0B-4K-3L land from the predecessor-in-interest of the respondents and the petitioners No.2 and 3 had jointly purchased another plot of land measuring 0B-4K-3L from the predecessor-in-interest of the respondents. It is stated in the plaint that the petitioners had taken over possession of the land forcefully without paying any consideration to their predecessor-in-interest by threatening the entire family with dire consequences, as such, the predecessor-in-interest of the respondents had to leave Dibrugarh and took shelter in a rented house at Nagaon. However, the petitioner No.2 had sent some meager amount by bank transfer towards the land value due to intervention of some local people, but due to mental shock, the predecessor-in-interest of the respondents had died on 15.06.2013. However, the petitioner No.2 had sent some meager amount by bank transfer towards the land value due to intervention of some local people, but due to mental shock, the predecessor-in-interest of the respondents had died on 15.06.2013. It was projected that the respondents had applied for mutation of their names in the place of their predecessor-in-interest by filing Mutation Case No. 611, 612, 613, 614 and 615/2015-16, but the said proceedings were dropped as the respondents were not in possession of the land and as the respondents had no source of income, they had appointed one Kashyap Barua as their lawful attorney to look after their land matters. Thus, it was stated that the petitioner No.2, namely, Hem Kanta Baruah had grabbed the land of the respondents including their ancestral Namghar and by amalgamating the entire grabbed land, constructed and started Kettekee Hotel Cum Rajdeep Marriage Hall thereon. It was stated that the respondents had instituted Land Grabbing Case under the Assam Land Grabbing (Prohibition) Act, 2010 which was numbered as Assam Land Grabbing Case No. 10/2016. Moreover, as the action by the petitioners had clouded the rights and interest of the respondents, hence, the suit was filed for declaration of right, title, interest and recovery of possession, for demarcation of the suit land, for issuing precept for mutating the land in the name of the respondents, for permanent injunction and other relief’s. 4. The petitioners had contested the suit by filing their written statement cum counter-claim on 24.04.2017, inter-alia, for a decree of declaration that the petitioners had acquired right, title, interest and ownership of the land described in the schedule of the written statement with counter-claim, for mutation of land in their names by issuing precept, for dismissing the suit, cost, etc. Consequently, on 14.08.2017, the respondents had filed their written statement against the counter-claim, inter-alia, denying the case as projected by the petitioners. 5. Thereafter, by filing petition No. 1055/18 dated 03.01.2018 under the provisions of Order XXIII Rule 1(3)(a) and (b) read with section 151 CPC, the respondents prayed for permitting them to withdraw the suit with liberty to institute a suit afresh. It was projected therein that on an application filed by the petitioners, the suit was stayed under Section 10 CPC. Thereafter, by filing petition No. 1055/18 dated 03.01.2018 under the provisions of Order XXIII Rule 1(3)(a) and (b) read with section 151 CPC, the respondents prayed for permitting them to withdraw the suit with liberty to institute a suit afresh. It was projected therein that on an application filed by the petitioners, the suit was stayed under Section 10 CPC. It was claimed that the respondents had no knowledge of the details of the suit property and that they had filed the suit on the basis of jamabandi issued by the revenue authorities and that the predecessor-in-interest of the respondents had sold out land measuring 4B-3k-18L from Dag Nos. 115, 118, 119 and 120 and he was owning the remaining land measuring 3B-2K-5L. It was further claimed that on a perusal of the documents filed by the petitioners, the respondents had found out that the documents submitted by the petitioners were forged, fabricated and manufactured by the petitioners. It was stated that in the written statement filed against the counter-claim, the respondents had already submitted that they will institute a fresh suit for cancellation of Deed of Sale and Deed of Rectification with the permission of the Court. It was also stated that in the plaint the details of the land sold were not given and that due to the lack of knowledge, the exact boundaries had not been given. Hence, it was stated that some formal defects is found in the suit, which cannot be corrected by amending the plaint, as such, it is required to withdraw the suit and to file a fresh suit in respect of the same subject matter of the present suit. The petitioners had filed their written objection against the said petition No. 1055/18, wherein it was denied that there were any formal defects in the suit, which could not be rectified by amending the suit and it was stated that the petitioners would suffer irreparable prejudice if a fresh suit is filed and, as such, the petitioners had prayed for the dismissal of the suit with cost. The learned trial Court, in the order impugned herein, had observed that on 02.01.2018, the respondents had withdrawn Assam Land Grabbing Case No. 10/2016 pending before the Court of the learned Addl. District & Sessions Judge, Dibrugarh. The learned trial Court, in the order impugned herein, had observed that on 02.01.2018, the respondents had withdrawn Assam Land Grabbing Case No. 10/2016 pending before the Court of the learned Addl. District & Sessions Judge, Dibrugarh. The learned trial Court had held that the reasons for filing the said petition bore sufficient reasons for allowing the prayer and that if the prayer was disallowed, the same would cause prejudice to the respondents. It was further held that if a fresh suit is filed, the petitioners would get an opportunity to contest the same, as such, the contention of the respondents cannot be accepted. As a result, the petition was allowed by disposing of the suit by giving liberty to institute a fresh suit. 6. The learned Senior Advocate for the petitioners has submitted that in the plaint, the Schedule-A, B and C are described by providing the relevant land record details, by giving definite boundaries of the said land. Moreover, it is submitted that the nature of defects in the pleadings made in the plaint has not been spelt out. It is submitted that the impugned order does not disclose any reasons for which the learned trial Court was satisfied to allow the suit to be withdrawn with liberty to file a fresh suit. It is also submitted that the learned trial Court did not record its satisfaction why the defects in the plaint cannot be remedied by suitably amending the plaint. Moreover, it is submitted that by allowing the respondents to withdraw the suit and file a fresh suit, there would be multiplicity of proceedings. It is submitted that the filing of petition No. 1055/18 was an abuse of the process of law. It is also submitted that the respondents had filed two successive proceedings which would determine their right, the first being Assam Land Grabbing Case No.10/2016 and the other being T.S. No. 3/2017, but when the petitioners had contested both the proceedings and the cases were ripe for evidence, at the said stage, the respondents had withdrawn the land grabbing case on 02.01.2018 and on 03.01.2018, the respondents had filed petition No. 1055/18 to withdraw the suit with liberty to file a fresh suit. It is submitted that the learned trial Court had committed grave error of law by closing the counter-claim without passing any order to proceed with the counter-claim. It is submitted that the learned trial Court had committed grave error of law by closing the counter-claim without passing any order to proceed with the counter-claim. In this connection, by relying on the provisions of Order VIII Rule 6A CPC, it is submitted that even if the suit was withdrawn, the counter-claim of the petitioners ought to have proceeded with. Hence, it is submitted that the impugned order was passed mechanically and by ignoring the relevant provisions of law and, as such, the impugned order was liable to be set aside by directing the suit to be restored to file. In support of his submissions, the learned senior advocate for the petitioners has placed reliance on the following cases, viz., (i) V. Rajendran Vs. Annasamy Pandian (Dead) through LRs., (2017) 5 SCC 63 ; (ii) K.S. Bhoopathy Vs. Kokila, (2000) AIR SC 2132; (iii) Kokila and Others.,2000 5 SCC 548; (iv) Debram Pegu Vs. Lakhinath Payeng and Others., 2018 1 GauLT 1 ; (v) Rabizul Ali Laskar Vs. Saibur Raja Laskar, (2002) 2 GauLT 169 ; (vi) Ayej Ali Vs. Imran Hussain & 7 Ors. (CRP No. 139/2017), decided by this Court on 02.08.2017. 7. The learned advocate for the respondents has placed reliance on the statements made in paragraphs 5 to 7 of the petition No. 1055/18 and it is submitted that the respondents had disclosed the reasons for permitting them to withdraw the suit and to file a fresh suit owing to formal defects. It is submitted that as necessary particulars of the suit land, relating to the land sold by the predecessor-in-interest of the respondents and the remaining land available for the respondents, were not pleaded, formal defects of such nature cannot be cured by amendment of the plaint. It is submitted that the learned trial Court was satisfied with the reasons assigned and, as such, the prayer made by the respondents fell within the scope of the provisions of Order XXIII, Rule (1)(3)(b) CPC. The learned advocate for the respondents has fairly conceded that there was no reason why the counter-claim filed by the petitioners should not proceed. 8. The learned advocate for the respondents has fairly conceded that there was no reason why the counter-claim filed by the petitioners should not proceed. 8. It is seen that in paragraph 16 of the written statement filed by the respondents against the counter-claim, it has been stated that "and also the plaintiffs reserves their right to file case against the defendants for making such forged documents after receipt of the said Deed of Agreement for Sale dated 16.02.2000 as stated in sub-para 9(ii). The defendants with a view to ulterior motive and wrongful gain did not furnish the copy of the deed of agreements to the plaintiffs along with the copy of the written statements cum counter claim." 9. Although not in an elaborate manner, but it appears to this Court that the learned trial Court has recorded its satisfaction by observing that "... In the case in hand, the plaintiffs reiterated that they are female and for which they could not collect full information’s in respect of the landed properties left behind by their predecessor and for which, they could not provide the details in the instant suit. By filing the instant petition, they want to withdraw the suit with liberty to file a suit afresh. In this connection Order XXIII Rule 3 comes into play." Here it is seen that the learned trial Court has made a typing error by referring to the provisions of "Order XXIII Rule 3", which ought to have been mentioned as "Order XXIII, Rule 1(3) CPC". It is further held that "According to me, the reason for filing the instant petition bears sufficient grounds for allowing the prayers. Disallowing the same will cause prejudice to the plaintiffs." 10. The relevant paragraphs of the case of V. Rajendran & Another., as decided by the Hon'ble Supreme Court are quoted below:- "9. As per Order XXIII Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order XXIII Rule 1 (3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b) that is, existence of a "formal defect" or "sufficient grounds". The principle under Order XXIII Rule 1 (3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action. 10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors., (2000) 5 SCC 458 , 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 so 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 XXIII 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, mis-joinder of parties, failure to disclose a cause of action etc. "Formal defect" must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. 11. In terms of Order XXIII 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. 11. In terms of Order XXIII 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 word "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". 12. In the present case, the appellants have filed the suit describing the suit property as Survey No.192/9 but the respondents are said to have transferred the patta for the suit property settling as Survey No.192/14. The defect in the survey number of the suit property goes to the very core of the subject matter of the suit and the entire proceedings would be fruitless if the decree holder is not able to get the decree executed successfully and thus, the said defect will constitute to be a "formal defect" within the meaning of Order XXIII Rule 1(3)(a) CPC. That apart the respondents are said to have executed an Inam Settlement Deed on 21.09.2012, in favour of their son Aranmanai Pandian, mentioning the suit property as Survey No.192/14. We are convinced that the case of the appellants would fall under clause (a) of Rule 1(3) CPC. 13. In the facts and circumstance of the case, the trial court considered the allegation set out in the application as a ground for withdrawal. The view taken by the trial court that the suit suffered from a formal defect to allow the appellants to withdraw the suit with permission to institute a fresh suit, is correct. 13. In the facts and circumstance of the case, the trial court considered the allegation set out in the application as a ground for withdrawal. The view taken by the trial court that the suit suffered from a formal defect to allow the appellants to withdraw the suit with permission to institute a fresh suit, is correct. The High Court, in our view, was not right in interfering with the discretion exercised by the trial court, permitting the appellants to withdraw the suit with liberty to file a fresh suit. Based on the order passed by the trial court, the appellants have already filed suit before District Munsiff and the same is numbered as O.S. No.11/2015. The High Court while passing the order on 09.03.2015 does not seem to have kept in view the said suit filed by the appellants. In the facts and circumstance of the case, the impugned order passed by the High Court cannot be sustained." 11. In the case of Debram Pegu, this Court had made the following observation:- "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 while passing orders afresh. The learned Trial Court shall also keep in mind the existence of counterclaim of the respondent." 12. 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 while passing orders afresh. The learned Trial Court shall also keep in mind the existence of counterclaim of the respondent." 12. As the relevant paragraph of the case of K.S. Bhoopathy is found quoted in the case of V. Rajendran , the same is not reproduced in this order. In the case of Ayej Ali Vs. Imran Hussain & 7 Ors., CRP 139/2017, where no order was passed on counter-claim just like the present case in hand, this Court had set aside the order challenged and had remanded the matter for fresh decision on the petition for withdrawal of suit. 13. As narrated above, in the plaint, the respondents had alleged that as the petitioners had grabbed their land including their ancestral Namghar, and had further alleged that due to the threat of dire consequences to the entire family by the petitioner No.2, the predecessor-in-interest of the respondents had to leave Dibrugarh and started to reside in Nagaon in a rented house and due to shock their predecessor-in-interest had died, leaving behind his wife (now stated to be 60 years) and two daughters (now working at Nagaon), and that due to lack of knowledge, they could not give details of their land, etc. It is also seen that the respondents are pursuing the suit through their attorney. Moreover, it is seen that as per the averments made in para 16 of the written statement filed by the respondents against the counter-claim, it has been stated that the plaintiffs reserves their right to file case against the defendants for making such forged documents after receipt of the said Deed of Agreement for Sale dated 16.02.2000 as stated in sub-para 9(ii), and that the defendants with a view to ulterior motive and wrongful gain did not furnish the copy of the deed of agreements to the plaintiffs along with the copy of the written statements cum counter claim. Thus, it is quite acceptable to this Court that the respondents were unable to give better particulars in the plaint and they apprehend that the suit would fail because of such formal defects. Thus, it is quite acceptable to this Court that the respondents were unable to give better particulars in the plaint and they apprehend that the suit would fail because of such formal defects. It is seen that in the case of V. Rajendran, the Hon'ble Supreme Court has held that mistake in giving survey numbers constitute a formal defect. Hence, in the opinion of this Court, the cases cited by the learned senior advocate for the petitioners do not come to the aid of the petitioners. 14. Hence, in view of the discussions above, this Court is satisfied that the statements made in petition No. 1055/18 about the lack of full description of the land sold by the predecessor- in- interest of the respondents and failure to provide correct boundaries of the suit land as well as averments in the written statement against counter-claim that the suit would be filed to challenge the forged documents constituted good and sufficient grounds for the learned trial Court to allow the respondents to withdraw the suit with leave to file a fresh suit. Although the As decision of the learned trial Court is not found to suffer from any jurisdictional error, following the observation made by the Hon'ble Supreme Court in the case of V. Rajendran , this Court is of the considered opinion that it would be not right for this Court to interfere with the discretion exercised by the trial court, permitting the appellants to withdraw the suit with liberty to file a fresh suit. 15. However, in so far as the counter-claim of the petitioners is concerned, as this Court finds that by the impugned order dated 28.02.2018, passed by the learned Civil Judge, Dibrugarh, there is no order to close the counter-claim filed by the petitioners, instead of remanding the matter back to the learned trial Court, which would further delay the matter, this Court is inclined to provide that this Court does not find any impediment for the counter-claim to be closed. Therefore, the learned trial Court shall now proceed with the counter-claim of the petitioners in accordance with law. Therefore, the learned trial Court shall now proceed with the counter-claim of the petitioners in accordance with law. In this regard, this Court is inclined to direct both the sides, who are duly represented by their learned advocates before this Court, shall appear before the learned Court of Civil Judge, Dibrugarh, on 01.10.2018, without any further notice of appearance, and by producing a certified copy of this order, the parties shall seek further instructions from the said learned Court in respect of the further proceedings of the counter-claim of the petitioners in connection with T.S. No. 3/2017. 16. Therefore, this revision fails and the same stands dismissed, however, with observations on the counter-claim of the petitioners. 17. The parties are left to bear their own cost.