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2018 DIGILAW 442 (ALL)

DEVI SHANKAR SRIVASTAVA v. CHUNNI LAL GUPTA

2018-02-19

MANOJ KUMAR GUPTA

body2018
JUDGMENT : Manoj Kumar Gupta, J. By order dated 24.5.2017, Civil Judge (Senior Division), Kanpur Nagar has allowed application 187-Ga filed by plaintiff-respondents seeking amendment of the plaint abandoning the suit against the petitioner/defendant no.5. The order passed by the revisional court, on the revision filed by the petitioner, dismissing the revision, is also under challenge. Counsel for the petitioner submitted that suit was instituted by concealing the fact that plaintiff is tenant of the suit property on behalf of the petitioner. It is urged that the petitioner being owner of the suit property was necessary party, the application filed by plaintiff was wholly malafide and ought to have been rejected. The plaintiff/respondents instituted the suit for permanent prohibitory injunction with the allegation that the suit property, which is in the nature of a shop, is in his possession since last 30 years wherefrom he has been doing business of sweet meat. The defendants on 25.11.2011, tried to dispossess him by force. Again on 27.11.2011, they tried to put the shop on fire. The petitioner, contested the suit by filing written statement contending that the plaintiff/respondent is tenant of the disputed shop on his behalf and said fact has been concealed by him, while filing the suit. During pendency of the suit, petitioner filed an application 187-Ga seeking to abandon his claim against the petitioner. He also made prayer for carrying out necessary amendment in the plaint, deleting name of the petitioner. Under order 23 Rule 1 CPC, the plaintiff has been conferred with the right to abandon his suit or part of his claim against all or any of the defendants. Under sub-rule (4) of Rule 1 of Order 23, where the plaintiff abandons any suit or part of claim under sub-rule (1), he is liable to pay such cost as court may award and he is precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Subject to these restrictions, the right to abandon, conferred upon the plaintiff, who is major, is not circumscribed by any other condition. Sub-rule (1) confers absolute and unqualified right on the plaintiff to abandon the claim. Unlike sub-rule (3) where permission of court is required, the withdrawal of suit under sub-rule (1) leaves the matter at the sweat will of the plaintiff, leaving no option to the court to refuse the prayer. Sub-rule (1) confers absolute and unqualified right on the plaintiff to abandon the claim. Unlike sub-rule (3) where permission of court is required, the withdrawal of suit under sub-rule (1) leaves the matter at the sweat will of the plaintiff, leaving no option to the court to refuse the prayer. The trial court while allowing the application has imposed cost of Rs.500/- on the plaintiff, payable to the petitioner. The effect of order of the trial court permitting plaintiff to abandon his claim against the petitioner is that the plaintiff is now precluded from bringing any fresh suit against the petitioner in respect of the same claim. In the opinion of the Court, the impugned order has been passed strictly in accordance with the legal provisions and this Court does not find any illegality therein to warrant interference in exercise of power under Article 227 of the Constitution. The petition lacks merit and is dismissed.