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2019 DIGILAW 576 (CAL)

Archana Roy v. Dipanjan Bhattacharjee

2019-05-08

BISWAJIT BASU

body2019
JUDGMENT : Biswajit Basu, J. The instant revisional application under Article 227 of the Constitution of India is directed against the order dated September 25, 2018 passed by the 9th Court, Civil Judge (Senior Division) at Alipore in Ejectment Suit No. 132 of 2016. 2. The petitioner filed the suit for eviction of the opposite party from the suit property alleging that the opposite party was put into possession of the suit property on the basis of the agreement styled as "leave and licence agreement" for a period stipulated in the said agreement. On expiry of the period fixed by the initial agreement subsequent agreements of same nature was entered into by and between the petitioner and the opposite party. The opposite party on expiry of the period fixed by last of such agreements refused to vacate the suit property and is continuing the possession over it as a trespasser. 3. The learned Trial Judge in course of the hearing of the said suit impounded one of the said agreements holding that the said agreement is not sufficiently stamped and send it to the collector for assessment of proper stamp duty payable on the said document. 4. The petitioner in the suit filed an application under sub-rule 3 of Order 23 Rule 1 of the Code of Civil Procedure praying that she may be permitted to withdraw the said suit with a liberty to file a fresh suit on the self-same subject matter of the said suit (hereinafter referred to as the 'said application' in short). 5. The petitioner in the said application contended, inter alia, that the learned Trial Judge during the pendency of the said suit observed that the agreement which is executed between the parties is in the nature of an unregistered lease and as such the agreement under the nomenclature of tenancy agreement executed between the parties in the year 2009 cannot be relied upon on the ground of insufficient stamp duty and impounded the said document. The plaintiff in view of the said circumstances has been advised by her learned counsel that as the proceeding was instituted in a defective manner, insufficient to sustain the present plaint, it would not be prudent on the part of the plaintiff to continue with the present proceeding as chances of getting any relief in the present proceeding is very bleak. 6. 6. The learned Trial Judge by the order impugned has permitted the petitioner to withdraw the suit but refused to grant liberty to file a fresh suit on the self-same subject matter and cause of action of the said suit. 7. The learned advocate for the petitioner submits that the petitioner is seeking eviction of the opposite party from the suit property describing him as a trespasser but the defendant in his written statement has taken the defence of a premises tenant and the learned Trial Judge has already treated the agreement of tenancy under which the defendant came into possession of the suit property as an unregistered deed of lease, under the said circumstances the petitioner realised that the suit will fail for want of a valid notice terminating the tenancy of the opposite party in respect of the suit property created under the said agreements or otherwise and accordingly filed the said application but the learned Trial Judge has refused to grant the permission to the petitioner to file a fresh suit on the self-same subject matter of the said suit, erroneously holding that the said application does not speak about the 'formal defect'. 8. He further submits that the Court under sub-rule 3 of Order 23 Rule 1 of the Code, if satisfied that either of the grounds contemplated under clause (a) or clause (b) of the said provision of the Code exists shall allow a plaintiff to withdraw the suit and to file a fresh one on the self-same subject matter of the suit allowed to be so withdrawn or part of it's claim but the prayer of the plaintiff under the said provision of the Code being composite cannot be split up. In support of his such contention he places reliance on the decision of the Hon'ble Division Bench of this Court in the case SURADHANI DEBYA Vs. CHANDRA NATH PRAMANIK AND ORS., (20 CWN 1011) and also on a decision of the Single Judge of the Karnataka High Court in the case of D.P. SHARMA Vs. BANGALORE MAHANAGARA PALIKE AND OTHERS, (2001) AIR Karnataka 401. 9. CHANDRA NATH PRAMANIK AND ORS., (20 CWN 1011) and also on a decision of the Single Judge of the Karnataka High Court in the case of D.P. SHARMA Vs. BANGALORE MAHANAGARA PALIKE AND OTHERS, (2001) AIR Karnataka 401. 9. The learned advocate for the opposite party refuting the contentions of the learned advocate for the petitioner submits that the plaintiff has an unqualified right to withdraw her suit to which the defendant cannot object but when the plaintiff is seeking the leave of the Court to file a fresh suit on the self-same subject matter upon withdrawal of the pending suit the defendant can very well object to such prayer of the plaintiff. He further submits that before grant of permission to the plaintiff to file a fresh suit on the self-same subject matter of the suit allowed to be withdrawn, Court is duty bound to get itself satisfied regarding the existence of proper ground for grant of such permission. He takes support the two decisions of the Hon'ble Apex Court in the case of K.S. BHOOPATHY AND OTHERS Vs. KOKILA AND OTHERS, (2000) 5 SCC 458 and in the case of ANIL KUMAR SINGH Vs. VIJAY PAL SINGH, (2017) AIR SC 5587 to substantiate his said contentions. Heard learned advocate for the parties and perused the materials on record. 10. Rule 1 of Order 23 deals with withdrawal of suit or abandonment of part of claim. The said provision of the Code is reproduced below for ready reference:- ORDER XXIII "1. Withdrawal of suit or abandonment of part of claim. (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court." 11. The plaintiff, therefore, under Rule 1 of Order 23 of the Code has an unqualified right to abandon his suit or part of his claim against all or any of the defendants. The plaintiff, therefore, under Rule 1 of Order 23 of the Code has an unqualified right to abandon his suit or part of his claim against all or any of the defendants. The only restriction to such right of the plaintiff is that where the plaintiff is a minor or such other person to whom the provisions contend in Rules 1 to 14 Order 32 extend, neither the suit nor any part of the claim thereof can be abandoned without leave of the Court. 12. The unfettered right of the plaintiff to abandon the suit under Rule 1 of Order 23 of the Code cannot be impeached by the defendant. The right of the defendant to object such prayer of the plaintiff matures when the plaintiff makes a prayer under sub-rule 3 of Order 23 Rule 1 of the Code seeking permission of the Court to file a fresh suit on the self-same subject matter of the suit sought to be withdrawn. The Hon'ble Apex Court in the decision reported in AIR 2017 SUPREME COURT 5587 (supra) has recognized such right of the defendant. The paragraph 26 of the said report being relevant is quoted below:- "26. However, when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject-matter as provided in sub-rule (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, on what terms as provided in sub-rule (3) of Rule.1." 13. The provision of sub-rule 3 of Order 23 Rule 1 of the Code is, therefore, the relevant provision under which the plaintiff is entitled to apply for an order to withdraw the suit with a permission to file a fresh suit on the self-same subject matter of the said suit or such part of claim of the said suit. The said provision of the Code is also quoted below for ready reference:- ORDER XXIII "1. Withdrawal of suit or abandonment of part of claim.- (1)......(2)...... The said provision of the Code is also quoted below for ready reference:- ORDER XXIII "1. Withdrawal of suit or abandonment of part of claim.- (1)......(2)...... (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) 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. (4)......(5)......" 14. The clauses (a) and (b) of the provision of sub-rule 3 of Order 23 Rule 1 of the Code contemplates two contingencies, on demonstration of any of the said contingencies the plaintiff is entitled to withdraw his suit with a permission to file a fresh suit in respect of the subject matter of such suit or such part of the claim, the plaintiff under clause (b) thereof is entitled to the same relief on the proof of the existence of sufficient grounds favouring such relief. 15. The Hon'ble Apex Court in the case of K.S. BHOOPATHY Vs. KOKILA AND OTHERS, (2000) 5 SCC 458 (supra) has held that the Court 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, is the mandate to the Court under clause (b) of sub-rule 3 of Rule 1 of Order 23 of the Code. The relevant excerpts of paragraph. 13 of the said report is quoted below :- "13........................................................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....................." 16. 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....................." 16. Another issue being incidental to the investigation as to the scope of the provision of sub-rule 3 of Order 23 Rule 1 of the Code crops up. The said issue is whether the expression 'sufficient grounds' appearing in clause (b) of sub-rule 3 of order 23 Rule 1 of the Code should be construed "ejusdem generis" with the expression "formal defects" appearing in clause (a) thereof. 17. The Hon'ble Apex Court in the case of V. RAJENDRAN AND ANOTHER Vs. ANNASAMY PANDIAN (DEAD) THROUGH LEGAL REPRESENTATIVES KARTHYAYANI NATCHIAR, (2017) 5 SCC 63 noticed that there are two views on the question whether the expression 'sufficient grounds' in clause (b) of sub-rule 3 of Order 23 Rule 1 of the Code is restricted to the expression 'formal defect' or those analogous thereto appearing in clause (a) Sub-rule 3 of Order 23 Rule 1 of the Code. The Hon'ble Apex Court did not elaborate the said issue as the said question was not under consideration in the said case before the Hon'ble Apex Court. However, in the context of present discussion it is profitable to quote the paragraph. 11 of the said report:- "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 it, 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). 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"." 18. The said issue was considered by a larger Bench of the Orissa High in the case of TRINATH BASANT RAY & ANOTHER Vs. Sk. MOHAMMOD & ANOTHER in WP(C) NO. 1813 OF 2004. The larger Bench of Orissa High answered the said issue in negative by approving the view of the learned Single Judge of the Orissa High Court in the case of ATUL KRUSHNA ROY Vs. RAUKLSHORE MOHANTY AND OTHERS, (1956) AIR Orissa 77. 19. Clauses (a) and (b) of sub-rule 3 of Order 23 Rule 1 of the Code provides two alternatives, therefore, there is no justification for restricting the meaning of the expression other "sufficient grounds" appearing in clause (b) of sub-rule 3 of Order 23 Rule 1 of the Code only to the formal defects or those analogous thereto as has been held by the learned Single Judge of the Orissa High Court in AIR 1956 ORISSA 77 (supra). 20. The Hon'ble Apex Court in the decision reported in (2017) 5 SUPREME COURT CASES 63(supra) approving the view expressed by the Hon'ble Apex Court in the case of K.S. BHOOPATHY Vs. KOKILA AND OTHERS held that the fact is 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. In the said decision the Hon'ble Apex Court also held that "formal defect" is a defect of form prescribed by the rules of procedure such as, want of notice under Section 80 of the Code, improper valuation of the suit, insufficient court-fees, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose cause of action etc. It has been further held in the said decision "formal defect" must be given a liberal meaning which connotes various kinds of defects not effecting the merits of the plea raised by either of the parties. It has been further held in the said decision "formal defect" must be given a liberal meaning which connotes various kinds of defects not effecting the merits of the plea raised by either of the parties. Paragraph 10 of the said decision needs to be reproduced, as such quoted 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 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 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 connotes various kinds of defects not affecting the merits of the plea raised by either of the parties." 21. The Court under sub-rule 3 of Order 23 Rule 1 of the Code is mandated to get itself satisfied about the sufficiency of the grounds for allowing the plaintiff to file a fresh suit on the self-same subject matter of the pending suit after allowing him to withdraw it. The object of the said mandate of the said provision of the Code is to prevent abuse of process of law and also to prevent prejudice to the defendant. The object of the said mandate of the said provision of the Code is to prevent abuse of process of law and also to prevent prejudice to the defendant. In other words the plaintiff will not be entitled to the permission to file a fresh suit on the self-same subject matter of the suit sought to be withdrawn, if such permission affects any right accrues in favour of the defendant in the said suit during it's pendency. The investigation to achieve the said object of the said provision of the Code is fact specific. 22. In the present case the agreement for tenancy dated February 14, 2009 was impounded by the learned Trial Judge as the said document was not sufficiently stamped when the same was tendered as evidence in course of the trial of the suit. Therefore, the tenancy created by the said document in favour of the opposite party in respect of the suit property cannot be determined without a valid notice. That apart the opposite party in the suit has taken the defence of a premises tenant. In any event the suit will fail for want of a valid notice which is a "formal defect" within the meaning of clause (a) of sub-rule 3 of Order 23 Rule 1 of the Code, which must be given a liberal meaning as has been held by the Hon'ble Apex Court in the decision reported in (2017) 5 SUPREME COURT CASES 63(supra). 23. That apart no right has been created in the suit by the order impounding the tenancy agreement or otherwise for which the prayer of the petitioner for the permission to file a fresh suit on the self-same subject matter of the said suit can be objected by the defendant. The plaintiff realising that the suit cannot succeed as the tenancy created by the agreement in favour of the defendant has not been determined by a valid notice when wants to withdraw the suit with a permission to file a fresh suit on the self-same subject matter of the said suit such permission must be granted as the situation covers existence of "sufficient grounds" envisaged under clause (b) of sub-rule 3 of Order 23 Rule 1 of the Code. 24. 24. The learned Trial Judge has refused to grant permission to the plaintiff to file a fresh suit on the self-same subject matter or cause of action of the suit allowed to be withdrawn by the order impugned on the ground that the said application does not speak about the "formal defect". If the conditions of sub-rule 3 of Order 23 Rule 1 of the Code are satisfied an application by the plaintiff is not an essential requirement for the said rule to apply as has been held by SOUMEN SEN, J. in the case of SAJEDA KHATOON Vs. SHAHATA HOSSAIN, (2012) 4 CalHN 707 (CAL). In the present case the conditions of the said provisions of the Code as has already been discussed above have been satisfied. Therefore, lack of clarity in the said application cannot come in the way of the plaintiff to get a permission to file a fresh suit on the self-same subject matter or cause of action of the suit already filed by her upon it's withdrawal. 25. The plaintiff has applied under sub-rule 3 of Order 23 Rule 1 of the Code for a conditional order that subject to the grant of permission to institute a fresh suit she may be permitted to withdraw the pending suit. The said prayer of the plaintiff cannot be split up. The Court if satisfied that grounds contemplated under the said provision of the Code exist shall allow the plaintiff to withdraw the suit and shall grant permission to the plaintiff to institute a fresh suit on the self-same subject matter of the suit, allowed to be withdrawn. If the Court is not satisfied about the existence of the grounds fulfilling the requirements of the said provision of the Code shall simply refuse both the prayers of the plaintiff. The Hon'ble Division Bench of this Court has expressed similar view in the decision reported in (20 CWN 1011) (supra). The relevant excerpts of paragraph. 1 of the said decision is reproduced below:- "1......................... Now the Court having been of opinion that leave should not be granted to the plaintiff to withdraw from the suit with liberty to bring afresh suit, it ought to have dismissed the application for withdrawal. As pointed out by Sir Lawrence Jenkins, Chief Justice, in the case of Mahant Bihari Dasji v. Parshotamdas 10 Bom. L.R. 293. Now the Court having been of opinion that leave should not be granted to the plaintiff to withdraw from the suit with liberty to bring afresh suit, it ought to have dismissed the application for withdrawal. As pointed out by Sir Lawrence Jenkins, Chief Justice, in the case of Mahant Bihari Dasji v. Parshotamdas 10 Bom. L.R. 293. "Where a plaintiff does not desire to withdraw from the suit, unless with liberty to bring a fresh suit, and the Court considers that such liberty ought not to be granted, the proper course is simply to dismiss the application"......................................" Same is the view expressed by the learned Single Judge of the Karnataka High Court in the case reported in (AIR 2001 KARNATAKA 401) (supra). The argument of the learned advocate for the petitioner, therefore, on this score succeeds. In view of the discussion made above the order impugned is modified by granting liberty to the plaintiff/petitioner to institute a fresh suit on the self-same subject matter or cause of action of the Title Suit No. 132 of 2016. However, the liberty granted by the learned Trial Judge to the plaintiff to withdraw the said suit subject to payment of cost of Rs. 5000/- is hereby affirmed. With the above C.O. 3616 of 2018 is disposed of. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.