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2019 DIGILAW 367 (HP)

Bipan Chand v. Tek Chand

2019-04-03

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this petition filed under Article 227 of the Constitution of India, Order dated 20.04.2017, passed by learned Civil Judge (Jr. Divn.), Court No. 7, Shimla, HP, vide which an application filed by the present petitioner under Order 23, Rule 1(3) (wrongly mentioned as Order 23, Rule 3) of the Code of Civil Procedure has been dismissed, stands assailed. 2. Brief facts necessary for adjudication of the present petition are that the petitioners herein filed a suit for declaration that they were absolute owners in possession of the suit land and revenue entries in jamabandis for the year 2002-03, 2006-07, 2011-12 showing the defendants in possession in the column of cultivation are null and void, with a consequential relief of permanent prohibitory injunction, restraining the defendants from interfering upon the suit land in any manner, changing the nature of the same. 3. The suit was filed in June 2016. In October, 2016, an application was filed under Order 23, Rule 1(3) (wrongly mentioned as Order 23, Rule 3) of the Code of Civil Procedure (hereinafter referred to as the ''Code'') by the petitioners/ plaintiffs, wherein a request was made that the plaintiffs be permitted to withdraw the suit with liberty to file a fresh suit on the basis of averments so made in the application. It was mentioned in the same that as the plaintiffs had challenged the revenue entries on the ground that revenue entries, reflecting the status of the defendants as non-occupancy tenants, were wrongly recorded by the State and revenue agencies subordinate to it, State and the revenue authorities were a necessary party and as plaintiffs had not impleaded them as so, there was a technical defect in the suit, for which the suit was likely to fail. It was further mentioned in the application that there was sufficient grounds for allowing the plaintiffs to withdraw the suit with permission or liberty reserved to them to file a fresh suit for declaration, injunction or possession. 4. The application was opposed by the respondents/ defendants inter alia on the ground that neither the suit nor the application was maintainable. It was further mentioned in the application that there was sufficient grounds for allowing the plaintiffs to withdraw the suit with permission or liberty reserved to them to file a fresh suit for declaration, injunction or possession. 4. The application was opposed by the respondents/ defendants inter alia on the ground that neither the suit nor the application was maintainable. The suit itself as also the application were hit by the principle of res-judicata as the issues which the plaintiffs intended to raise in the suit were earlier adjudicated in a matter by Land Revenue Officer in case No. 6/75, which stood dismissed on 24.02.1976. It was further mentioned in the reply that the application lacked material and better particulars and as no claim had been set up against the State or Revenue Authorities, it was not necessary to implead them as defendants. As per respondents/defendants, the claim set up in the suit was time barred and the plaintiffs could not be permitted to withdraw the suit to file a fresh one on a fresh cause of action. 5. Vide order dated 20.04.2017, learned Court below has dismissed the application by holding that it was evident from the documentary evidence attached with the file that right, title and interest over the suit land pertained to the applicants/plaintiffs and the respondents and there was no concern over the same of the State. It further held that on the ground of wrong revenue entries allegedly having been recorded, State was not a necessary party in the absence of whom suit cannot continue or final order could not be passed. It also held that in case the applicant intended to implead the State as a party, for this, withdrawal of the suit was not necessary and the same could be done by filing an application under Order 1, Rule 10 of the Code and in case, the Court came to the conclusion that the State was a necessary party, then it could implead the State as such. Learned Court thus concluded that there was no technical defect in the present suit for which withdrawal application with liberty to file fresh suit on the same cause of action be allowed. After returning said findings, learned Court below, in para 2 of the order referred to the objection to the application as were contained in the reply filed by respondents No. 1 and 2 respectively. After returning said findings, learned Court below, in para 2 of the order referred to the objection to the application as were contained in the reply filed by respondents No. 1 and 2 respectively. Learned Court below thus dismissed the application as not sustainable on the ground that it did not reveal any cogent reason for withdrawal of the suit with liberty to file a fresh suit. 6. I have heard learned Counsel for the parties and also gone through the impugned order as well as the record of the case. 7. Order 23, Rule 1 (3) of the Code provides that where the Court is satisfied that a suit must fail by reason of some defect, or 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 suit in respect of the subject-matter of such suit or such part of the claim. 8. Coming to the facts of the present case, learned trial Court has primarily refused to grant the relief as prayed for by holding that it was evident from the documentary evidence attached with the file that right, title and interest over the suit land was intra the plaintiffs and defendants and there is no concern of the State in the suit. In my considered view, said findings of the learned Court below are completely perverse as it is not in dispute that the stage at which the application under Order 23, Rule 1(3) of the Code was filed, written statement of the parties was not on record. Meaning thereby that neither any Issues stood framed nor the documents stood exhibited. As such, it is not clear as to on what "documentary evidence" said findings were returned by the learned Court below. Not only this, there are contradictions in the impugned order. Meaning thereby that neither any Issues stood framed nor the documents stood exhibited. As such, it is not clear as to on what "documentary evidence" said findings were returned by the learned Court below. Not only this, there are contradictions in the impugned order. On one hand, learned Court below has held that there was no technical defect in the suit as State was not a necessary party, whereas on the other hand, it has held that in case the applicant intended to implead the State as a party, for this, withdrawal of the suit was not necessary and the same could be done by filing an application under Order 1, Rule 10 of the Code and if the Court deemed it necessary, the State can always be impleaded as a party by passing appropriate orders on the said application. Besides this, taking into consideration the fact that the suit was at an initial stage, in my considered view, it would have been in the interest of justice, had the learned trial Court allowed the application as prayed for, of course, by reserving liberty to the defendants/respondents to take all objections, which in law were available to them, in case, any fresh suit was instituted including the ground of limitation. 9. In view of above discussion, impugned order dated 20.04.2017, passed by learned Civil Judge (Jr. Divn.), Court No. 7, Shimla, is quashed and set aside. The petitioners/plaintiffs are permitted to withdraw the suit with liberty as prayed for. Further, it is clarified that in case any fresh suit is instituted by the plaintiffs, then the defendants shall be at liberty to raise all objections with regard to maintainability of the suit, including those objections which find mention in the reply filed to the application under Order 23, Rule 1(3) of the Code. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any. No orders as to costs.