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2020 DIGILAW 635 (JHR)

Shakara Khatoon v. Mumtaz Alam

2020-06-22

RAJESH SHANKAR

body2020
JUDGMENT : The present case is taken up through video conferencing. 2. Learned counsel for the petitioners while advancing the argument has confined the prayer to extent of quashing the order dated 28.06.2019 (Annexure-9 to the writ petition) passed by the Additional Munsif-II, Koderma in Title Suit No. 30 of 2012 by reasons of which the application filed by the petitioners under Order XXIII Rule 1(3) of the Code of Civil Procedure (in short “CPC”) has been rejected. 3. The factual background of the case as stated in the writ petition is that Title Suit No. 30 of 2012 has been filed by the original plaintiffs Md. Taslim and Jaibunis in the Court of Civil Judge (Jr.Divsion)-II (Munsif), Koderma against the defendants/respondents seeking a decree for declaration that the plaintiffs have the right of passage over the suit property besides other reliefs. The defendants contested the suit by filing written statement. The issues were framed in the said suit on 20.02.2013. The petitioners being the legal heirs of the original plaintiffs, filed an application dated 05.09.2018 under Order VI Rule 17 read with Section 151 of CPC seeking amendment in the plaint which was objected by the defendants by filing rejoinder to the said application. The court below vide order dated 07.02.2019 rejected the amendment application. Thereafter, the petitioners/plaintiffs filed an application under Order XXIII Rule 1(3) of the CPC for withdrawal of the suit, however the court below vide order dated 28.06.2019 also rejected the said application. Hence, the present writ petition. 4. The learned counsel for the petitioners submits that the learned court below has rejected the application of the petitioners without appreciating the materials on record and relevant provisions of Order XXIII Rule 1(3) of the CPC. It is further submitted that after rejection of the application seeking amendment, the petitioners had no option but to file an application for withdrawal of the suit, however the same has also been dismissed as a result of which the petitioners would suffer irreparable loss and damage. The learned court below has also failed to consider that due to lack of appropriate legal advice, the parties should not be made to suffer. It is also submitted that in view of the provisions of Order XXIII Rule 1(3) of CPC, if the suit suffers from formal defect, the plaintiff may be permitted to withdraw his suit at any stage. 5. It is also submitted that in view of the provisions of Order XXIII Rule 1(3) of CPC, if the suit suffers from formal defect, the plaintiff may be permitted to withdraw his suit at any stage. 5. Heard the learned counsel for the parties and perused the materials available on record. Before coming into the merit of the case, it would be appropriate to go through Order 23 Rule 1 of the CPC which reads as under:- Order 23 Rule 1 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 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (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) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this Rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” 6. Order 23 Rule 1 of the CPC provides for abandonment of suit or part of claim as well as the withdrawal of the suit. Sub-rule (1) gives right to the plaintiff to abandon the suit or part thereof at any time after its filing and no permission is required under such rule. However, if plaintiff wants to withdraw suit for filing a fresh suit on the same cause of action, he is required to seek permission of the court for withdrawal of the suit under sub-rule (3) of Rule 1 which is to be considered on two grounds as detailed in the said sub-rule itself i.e. if a suit is to fail by reason of some formal defect, or 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. In view of sub-rule (4) of Rule 1, if the plaintiff withdraws the suit without the permission of the court then he shall be precluded from filing suit on the same ground as well as he shall have to pay such costs as the court may award. Sub-rule (5) of Rule 1 provides that if there are more than one plaintiff, then unless all the plaintiffs give consent to withdraw the suit, the permission to withdraw the suit cannot be granted under sub-rule (1) or (3). 7. In the case of K.S. Bhoopathy & Others Vs. Kokila & Others reported in (2000) 5 SCC 458 the Hon’ble Supreme Court 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. 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. 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.” 8. Thus, there are distinctions between sub-rule (1) and sub-rule (3) of Rule 1 under Order XXIII. On the one hand, under sub-rule (1), the right to abandon the suit or part of claim is an absolute right of the plaintiff which may be exercised at any time, on the other hand, under sub-rule (3), the discretion is given to the court to grant or not to grant leave for withdrawal of the suit giving liberty to the plaintiff to institute fresh suit in respect of the subject matter of such suit or such part of claim and such discretion is required to be exercised with caution and circumspection. The purpose behind restricting the liberty of withdrawal is to avoid the escape of plaintiff from a decree that might go against him with an opportunity to revive it on a clean slate. 9. Reverting back to the present case. It is evident that the plaintiffs have filed suit seeking declaration that they have right to passage over the pathway measuring 35 feet X 3.5 feet claiming that Md. Tasleem, husband of plaintiff No. 1 and father of plaintiffs no. 1(a) to 1(f) and Md. Muslim father of plaintiff no. 2 to 2(e) purchased 7 decimal of land bearing plot no. 1406 under Khata no. 39 situated at Mohalla Jalwabad near Koderma, P.S. and District- Koderma by virtue of registered sale deed and constructed house thereupon and have been using the suit land as path by way of easement of necessity. At the time of final argument, the defendants claimed that the suit is barred under Section 4 of the Indian Easement Act and the plaintiffs cannot claim right of easement over their land. At the time of final argument, the defendants claimed that the suit is barred under Section 4 of the Indian Easement Act and the plaintiffs cannot claim right of easement over their land. The plaintiffs had proposed the amendments to the relief portion of original plaint to the extent of adding that the plaintiffs have right title, interest and possession over the suit land and when the said amendment application was rejected, the present application has been filed. In view of the aforesaid facts, the claim of the petitioners that the defect due to which the suit would have failed by reasons of some formal defect, cannot be accepted. 10. The court below after taking into consideration the facts of the case as well as the scope of withdrawal provided under Order XXIII Rule 1(3) of CPC, has rejected the application of the petitioners by holding that the ground taken by the petitioners for withdrawal of the suit is not a formal defect and only when the petitioners/plaintiffs apprehended that the suit might fail due to their default, the present application has been filed portraying the vague picture of formal defect in the present suit. The failure or inability of the plaintiff to secure necessary evidence to support his case is not a ground contemplated by Order XXIII Rule 1(3) of the CPC. It is not the object of the rule to enable the plaintiff to re-agitate the matter and thus prejudice the other side. I thus do not find any infirmity in the order of the court below. The petitioners had filed application for withdrawal of the suit at the stage of the final argument of the case only when they were in apprehension of dismissal of the suit. It is not the intendment of the legislature while incorporating the provisions under Order XXIII Rule 1(3) of CPC that the plaintiff may be allowed to withdraw his suit when it is about to go against him. Though the abandonment is permissible at any stage, the words “at any stage” is missing in the case of withdrawal of suit. Thus the legislature has not permitted the plaintiffs to withdraw the suit at the fag end just to deprive the defendants of getting the fruit of decree. 11. Though the abandonment is permissible at any stage, the words “at any stage” is missing in the case of withdrawal of suit. Thus the legislature has not permitted the plaintiffs to withdraw the suit at the fag end just to deprive the defendants of getting the fruit of decree. 11. Under the aforesaid factual and legal position I do not find any infirmity in the order dated 28.06.2019 passed by the Additional Munsif-II, Koderma in Title Suit No. 30 of 2012. 12. The writ petition being devoid of merit is, accordingly, dismissed.