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Madhya Pradesh High Court · body

2018 DIGILAW 906 (MP)

Aram Bai v. Pratap Singh (Dead) through Lrs

2018-10-25

G.S.AHLUWALIA

body2018
JUDGMENT : Heard finally. 2. This petition under Article 227 of the Constitution of India, has been filed calling in question, the order dated 9-7-2013 passed by Civil Judge Class II, Mungawali, Distt. Ashoknagar, in Civil Suit No. 3A/2011 by which the application filed by the Petitioner under Order 23 Rule 1(3) of C.P.C. has been rejected. 3. The necessary facts for the disposal of the present petition in short are that the petitioner has filed a civil suit for declaration of title, Partition and for declaring the order dated 18-10-2010 passed by Revenue Court as null and void. 4. It is the case of the Petitioner that She and the defendants had a Joint Hindu Family property situated in village Nadankhedi, Tahsil Mungawali, Distt. Ashoknagar, in which the petitioner has share to the extent of 26% whereas the defendants no. 1 to 6 have share to the extent of 24% and the defendant no. 7 has share to the extent of 50%. An application for partition of the suit property was filed before the Court of Tahsildar, Tahsil Mungawali, and without recording any evidence, the Tahsildar has rejected the application, and thus, the order of Tahsildar is liable to be set aside. It was further pleaded that the father of the petitioner and other defendants had got the land in question on lease and were placed in possession and from thereafter, they are in peaceful possession. Although the suit property should have been partitioned in the revenue proceedings, but that has not been done. It was further pleaded that the petitioner is already in possession of her share to the extent of 26%. It was further pleaded that the Tahsildar has merely rejected the application on technical ground and thus, the order of Tahsildar is liable to be set aside. Thus, the suit was filed for declaration that the petitioner has share to the extent of 26%, partition for declaration that order of Tahsildar is null and void, as well as the defendants be restrained permanently from interfering with the peaceful possession of the petitioner. 5. It appears that the evidence of the plaintiff's witness was recorded and the Trial Court, fixed the case for recording of defendant's evidence. 6. 5. It appears that the evidence of the plaintiff's witness was recorded and the Trial Court, fixed the case for recording of defendant's evidence. 6. The petitioner, thereafter, filed an application under Order 6 Rule 17 C.P.C. mentioning in detail, about the manner in which the lease was granted and also mentioning in detail, the share of the parties in the different survey numbers. 7. The said application was rejected by the Trial Court, however, the order of the Trial Court is not on record. It is also not clear that whether the order of the Trial Court, was challenged by the Petitioner or not? But the fact is that the order of the Trial Court, rejecting the application filed by the petitioner under Order 6 Rule 17 of C.P.C. was allowed to attain finality. 8. Thereafter, the petitioner filed an application under Order 23 Rule 1(3) of C.P.C. alleging inter alia that as per the provisions of Order 7 Rule 3 C.P.C., the plaintiff is required to plead specifically about the identity of the suit property, therefore, it was necessary for the plaintiff to clarify the identity of the suit property and the share of the petitioner, by filing a map, which was not done, therefore, it would amount to “formal defect”, and thus, the petitioner be permitted to withdrawn the suit with liberty to file a fresh one. It was also alleged that by mistake, one of the legal representative of Udwait Singh was not made a defendant in the suit. 9. The Trial Court by order dated 9-7-2013, rejected the application, by holding that the defect pointed out by the petitioner cannot be said to be “formal defect”and there doesnt appear to be sufficient reason as required under Order 23 Rule 1(3) of C.P.C. 10. 9. The Trial Court by order dated 9-7-2013, rejected the application, by holding that the defect pointed out by the petitioner cannot be said to be “formal defect”and there doesnt appear to be sufficient reason as required under Order 23 Rule 1(3) of C.P.C. 10. Challenging the order of the Trial Court, it is submitted by the Counsel for the petitioner, that since, the petitioner had not given the details of the property, therefore, even if it is held that the petitioner had 26% share in the suit property, and the petitioner is in possession of specific portion of land, but in absence of details of the property in possession of the petitioner, it would not be possible for the Trial Court, to pass an executable decree, therefore, the defect pointed out by the Petitioner, would come within the purview of “formal defect”, thus, the Trial Court should have permitted the petitioner to withdraw the suit with liberty to file a fresh one. 11. None appears for the respondents, though served. 12. Heard the learned Counsel for the Petitioner. 13. The only question for determination in the present petition is that whether the defect of not filing the map along with the petition can be said to be a “formal defect” or whether there are “sufficient reasons”. 14. The Supreme Court in the case of K.S. Bhoopathy VS. Kokila reported in (2000) 5 SCC 458 has held as under : ''13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied 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 court is to discharge the duty mandated under the provision of the Code on taking into consideration all 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. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. 14. In Bakhtawar Singh v. Sada Kaur the question of grant of permission under clause (3) of Order XXIII Rule 1 CPC was considered wherein it was held: (SCC Headnote) “In the present case all the courts below including the High Court concurrently found that the plaintiff-appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter. The plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiff-appellants in accordance with the provisions of clause (3) of Order 23 Rule 1 of the Code.” 15. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiff-appellants in accordance with the provisions of clause (3) of Order 23 Rule 1 of the Code.” 15. Recently in the case of Executive Officer, Arthanareswarar Temple vs. R. Sathyamoorthy this Court restated the general principles for dealing with the applications under Order XXIII Rule 1 CPC in the following words: (SCC Headnote) “Various High Courts have rightly held, while dealing with applications under Order 23 Rule 1 CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial court dismissing the suit and if the appellant-plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted.” 16. The question for consideration in the present case is whether the High Court has exercised the discretion vested under Order XXIII Rule 1(3) CPC on consideration of matters relevant for exercise of such power. On perusal of the impugned order it is clear to us that the learned Judge has not considered the matter in its proper perspective while allowing the prayer of the plaintiff for permission to withdraw the suit with leave to file a fresh suit. The order is vitiated on account of non-application of mind to the relevant aspects of the matter. The order is vitiated on account of non-application of mind to the relevant aspects of the matter. This position is clear from some observations in the impugned order which are extracted herein-below: “But, one fact-situation has to be remembered in this case, viz., that it was the appellants who succeeded in the trial court in obtaining a decree and in the appeal against such decree by the respondents, which was partly allowed, the appellate court found that the pathway was common to both the parties, but the right was not gone into, title was not determined, in such a situation withdrawal of the suit at the appellate stage although it may amount to withdrawal or nullification of the appellate court’s order, still did not hurt any party other than the withdrawing plaintiffs, because they are also having the right to use the common pathway and the decree preventing installation of the machinery is nullified. Therefore, the contention that withdrawal will prejudice the respondents, has no basis. The apprehended prejudice can be safeguarded by keeping the right to use the pathway by both the parties till the disposal of the suit. … In view of this settled position, it is appropriate to permit withdrawal of the suit with a liberty to file a fresh suit for declaration of title which they ought to have done at the initial stage. By withdrawal, the respondents should not be deprived of the benefit of usage of that passage till the final adjudication. If there are valid defences, they can raise all such defences.” 17. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial court and the first appellate court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse to Order XXIII Rule 1(3) CPC and filed the application for withdrawal of the suit with leave to file a fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at the appellate or second appellate stage prejudice to the defendant is writ large as he loses the benefit of the decision in his favour in the lower court.'' 15. Thus, if the facts of the present case are considered in the light of the judgment passed by the Supreme Court in the case of K.S. Bhoopathy (Supra), then it would be clear that after the plaintiff's evidence was over, the plaintiff/Petitioner filed an application under Order 6 Rule 17 of C.P.C.. However, the said application was rejected by the Trial Court, but the copy of the said order, has not been placed on record. However, the said application was rejected by the Trial Court, but the copy of the said order, has not been placed on record. Thereafter, an application under Order 23 Rule 1(3) of C.P.C. was filed seeking permission to withdraw the suit with liberty to file a fresh one, on the ground that the map showing the piece of land, which is in possession of the petitioner, was not filed. It was also contended by the petitioner in her application under Order 23 Rule 1(3) of C.P.C. that one of the legal representative of Udwait Singh, could not be impleaded in the suit, and since, he is a necessary party therefore, the petitioner may be permitted to withdraw the suit with liberty to file a fresh one. In the considered opinion of this Court, the reasons assigned for rejecting the application for amendment, may have some impact on the outcome of application filed under Order 23 Rule 1(3) of C.P.C. 16. However, the moot question is that whether the defect in the plaint as claimed by the petitioner can be termed as “formal defect” or not? It is submitted by the Counsel for the Petitioner, that although the Petitioner has alleged that She has share to the extent of 26% in the property and an oral partition has already taken place and is in possession of a particular piece of property, but since, the map was not filed, therefore, the identity of the land would not be established. In case, the Trial Court, comes to a conclusion that the Petitioner has share to the extent of 26% but in absence of better particulars in respect of the property on which the petitioner is in possession, it would be very difficult for the Trial Court to grant decree in respect of the specific piece of property, thus, it is clear that there would be a difficulty in identifying the property, and in such a situation, the Trial Court, would not be in a position to pass an effective and executable decree, thus, the defect of not filing the map clarifying the details of the property which fell to the share of the petitioner after oral partition, would come within the purview of “formal defect”. 17. The submission made by the Counsel for the petitioner cannot be accepted. 18. 17. The submission made by the Counsel for the petitioner cannot be accepted. 18. It is the case of the petitioner, that the petitioner has share to the extent of 26% in the property and by virtue of oral partition, the petitioner is in possession of the said property. In the plaint, no details were given in respect of the date on which the oral partition had taken place. No details were given in respect of the property which fell to the share of the petitioner and to other co-sharers. Except by mentioning that an oral partition had taken place, no other pleadings were made. However, it appears that after the plaintiff's evidence was over, and might be realizing some difficulty which might have arisen because of cross examination done by the defendants, the plaintiff filed an application under Order 6 Rule 17 C.P.C. for amendment of plaint. The said application was rejected. Neither the order of the Trial Court, by which the application for amendment was rejected has been placed on record, nor it has been clarified that whether the said order was challenged or not? But one thing is clear that the order rejecting the application for amendment was allowed to attain finality. The petitioner should have placed the said order on record, to show that it would not have any bearing on the outcome of the application filed under Order 23 Rule 1 (3) of C.P.C. Thus, after having failed in getting the plaint amended, the Plaintiff tried to adopt an alternative method of getting rid of weakness of the pleadings. As held by the Supreme Court in the case of K.S. Bhoopathy (Supra), it is for the plaintiff to frame her suit in any form as advised. In the facts and circumstances of the case, it appears that after the recording of plaintiff's evidence, the plaintiff realized her weakness, and in order to frustrate the valuable right which had already accrued in favour of the defendants, the plaintiff tried to withdraw the suit, with liberty to file a fresh suit. In the facts and circumstances of the case, it appears that after the recording of plaintiff's evidence, the plaintiff realized her weakness, and in order to frustrate the valuable right which had already accrued in favour of the defendants, the plaintiff tried to withdraw the suit, with liberty to file a fresh suit. For the sake of convenience, if the argument of the Counsel for the Petitioner that if the Trial Court, comes to a conclusion, that the petitioner has 26% share in the property, and an oral partition had taken place and the petitioner was placed in possession of the specific piece of property, then in absence of details of the said piece of land, it would not be possible for the Trial Court to pass an effective decree, is accepted, even then it cannot be said that the defect was “formal” in nature. If the Trial Court, comes to a conclusion that the Petitioner has share to the extent of 26% in the suit property, then at the most, the petitioner would not be in a position to get the property of her choice, whereas the petitioner wants the property of her choice. Thus, it can be said that the defect pointed out by the petitioner would not result in failure of the suit, but it would certainly amount to frustration of the interest of the petitioner, to the extent of having a particular piece of property. Thus, it cannot be said that the defect was formal in nature resulting in “failure of suit”. At the most, it can be said that defect is of the nature, which would result in failure to have a particular piece of property. Thus, it is clear that the case of the petitioner would certainly not come within the purview of Order 23 Rule 1(3) of C.P.C. In the present case, at the most, it can be said that there is a deficiency in pleading and for the same, the plaintiff has to blame herself and none else. Once, the defendant has pointed out certain lapses, which according to the plaintiff also, may prove fatal, then certainly, it can be said that a valuable right has accrued in favour of the defendants to take advantage of such weakness of the plaintiff. Once, the defendant has pointed out certain lapses, which according to the plaintiff also, may prove fatal, then certainly, it can be said that a valuable right has accrued in favour of the defendants to take advantage of such weakness of the plaintiff. In the considered opinion of this Court, this valuable right cannot be taken away from the defendants under the garb of Order 23 Rule 1(3) of C.P.C. 19. The Counsel for the Petitioner has relied upon the judgment passed by the Supreme Court in the case of V. Rajendran Vs. Annasamy Pandian reported in (2017) 5 SCC 63 , in which it has been held as under : ''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”. 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 23 Rule 1(3)(a) CPC. That apart, the respondents are said to have executed an Inam settlement deed on 21-9-2012, 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.'' 20. The Judgment passed in the case of V. Rajendran (Supra) is distinguishable for the simple reason, that in the said case, although the Plaintiff had given the details of the property, but it was the case of the plaintiff that later on, the said property was re-numbered which was not within the knowledge of the plaintiff, therefore, even if the decree is passed, he would not be able to get it executed successfully and therefore, the defect was formal. However, in the present case, the plaintiff had not given the details of the property at all. Thus, where the plaintiff had decided to file the suit as per her wisdom and later on, if it is found by her, that she may not get the relief of her own choice, then it can not be said that the defect was formal in nature, resulting in failure of suit. Failure of suit and failure to get the relief of her choice are two different aspects. Failure to get relief of her choice cannot be said to failure of suit as provided under Order 23 Rule 1(3) of C.P.C. 21. It was further submitted by the Counsel for the Petitioner, that since, the petitioner had failed to implead one of the legal representative of Udwait Singh, therefore, this defect was formal in nature and her suit could have been dismissed on the ground of non-joinder of necessary party. The submission made by the Counsel for the petitioner cannot be accepted. Once, the petitioner had come to know that some necessary party has not been impleaded, then she could have filed an application under Order 1 Rule 10 of C.P.C. 22. No other argument was advanced. 23. Under these circumstances, this Court is of the view, that the Trial Court, didn't commit any mistake in dismissing the application filed by the plaintiff/petitioner under Order 23 Rule 1(3) of C.P.C. and accordingly, the order dated 9-7-2013 passed by Civil Judge Class II, Mungawali, Distt. Ashoknagar, in Civil Suit No. 3A/2011 is hereby affirmed. 24. 23. Under these circumstances, this Court is of the view, that the Trial Court, didn't commit any mistake in dismissing the application filed by the plaintiff/petitioner under Order 23 Rule 1(3) of C.P.C. and accordingly, the order dated 9-7-2013 passed by Civil Judge Class II, Mungawali, Distt. Ashoknagar, in Civil Suit No. 3A/2011 is hereby affirmed. 24. This Court by order dated 6-9-2013 had stayed the further proceedings in the civil suit. The interim order is hereby vacated. 25. The Petition fails and is hereby dismissed.