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2024 DIGILAW 288 (HP)

Banjara Mountain Retreat v. Hira Nand Sharma

2024-04-25

VIRENDER SINGH

body2024
JUDGMENT : Virender Singh, J. OMP No.434 of 2023 This order of mine shall dispose of an application, under Order XXIII Rule 1 read with Sections 94 and 151 of Code of Civil Procedure (hereinafter referred to as the ‘CPC’), filed by the plaintiff, with a prayer to permit the plaintiff to withdraw the present suit, with liberty to file a fresh one, on the same cause of action. 2. Plaintiff has preferred the suit for permanent prohibitory injunction, directing defendant-Hira Nand Sharma, not to cause any interference, whatsoever, in respect of land, which is the subject matter of lease deed/agreement dated 16.01.2018, comprising of Khata No.8, Khatauni No.12, Khasra No.3, 6, 26 and 27, measuring 27-2 bigha, situated at Mauza Kahlog, Tehsil Kandaghat, District Solan (H.P.) (hereinafter referred to as the ‘suit land’), as well as, for recovery of Rs.1 crore, on account of damages, suffered by plaintiff, due to illegal and arbitrary acts of defendant. 3. When put to notice, the suit has been contested by the defendant. Defendant has also moved application (OMP No.651 of 2022), under Order VII Rule 11 read with Section 151 of CPC, for rejection of plaint. 4. Thereafter, the plaintiff has filed the present application, on the ground that, due to bona fide mistake and inadvertently, suit has wrongly been filed in the name of ‘M/s Banjara Mountain Retreat’, which, according to the plaintiff, is a business name/nomenclature for doing business. The said name is stated to be not a legal entity or a registered partnership firm. 5. The suit, according to the plaintiff, should have been filed, in the name of Sh. Vivek Kumar. However, inadvertently, the same has been filed in the name of ‘M/s Banjara Mountain Retreat’, which is a business name. It has been pleaded that on account of the said “formal defect”, the suit is likely to fail. 6. It is further case of the plaintiff that defendant had refused to accept the lease money and had even returned the lease money, deposited in the account of defendant in Bank A/c No.13560101101283 of UCO Bank, Sadhupul. The said amount has been returned by defendant in the account of plaintiff, in Bank A/c No.09810210002698 of UCO Bank, Nigam Vihar, Shimla. As such, the plaintiff has deposited a sum of Rs.10 lacs, in the Registry, in this case. 7. The said amount has been returned by defendant in the account of plaintiff, in Bank A/c No.09810210002698 of UCO Bank, Nigam Vihar, Shimla. As such, the plaintiff has deposited a sum of Rs.10 lacs, in the Registry, in this case. 7. On the basis of above facts, a prayer has been made to allow the application and to refund the said amount, in favour of the plaintiff. 8. The application has been contested by the defendant, on the ground that, the application is not maintainable, as, the applicant cannot be allowed to institute any other suit, by granting permission to file, before this Court, on the same cause of action, as, the stand, taken by the plaintiff that the suit has wrongly been filed, has been contested, by pleading that no cause of action is available to the plaintiff to file the suit, against the defendant. 9. M/s Banjara Mountain Retreat is stated to be a registered firm and this material fact has been concealed by the plaintiff. In addition to this, a stand has also been taken that there is no privity of contract between the plaintiff and defendant. 10. Application has also been opposed, on the ground that, defendant has terminated the lease agreement with the original lessee namely Vivek Kumar, after serving proper notice, upon him and he has failed to handover the vacant and peaceful possession of the suit land, within the stipulated period of time. 11. On the basis of above, a prayer has been made to dismiss the application. 12. A perusal of record shows that the suit has been filed, in the name of ‘M/s Banjara Mountain Retreat’, through its authorized representative/authorized signatory namely Sh. Vivek Singh, son of Ravi Kumar. 13. In para No.1 of the plaint, it has been pleaded that the plaintiff is a registered partnership firm, under the Partnership Act. Para No.1 of the plaint is reproduced, as under:- “1. That the plaintiff is a registered partnership firm registered under the Partnership Act. The firm by way of resolution has authorized Sh. Vivek Kumar S/o Sh. Ravi Kumar, Partner its to file, verify and sign present civil suit and represent plaintiff firm in every respect, he is well conversant with the facts of the case and as such is in a position to depose about the correctness and otherwise of the fact stated in the plaint. Vivek Kumar S/o Sh. Ravi Kumar, Partner its to file, verify and sign present civil suit and represent plaintiff firm in every respect, he is well conversant with the facts of the case and as such is in a position to depose about the correctness and otherwise of the fact stated in the plaint. He is competent to sign verify all types of pleadings, Vakalatnamas, affidavits, evidence, executions and various other applications and to do all acts, necessary for the proper conduct of legal proceedings filed by and on behalf of the plaintiff firm.” 14. As per the document, annexed with the plaint, the lease deed, dated 16.01.2018, was entered into between defendant-Hira Nand Sharma, son of Med Ram, with one Sh. Vivek Kumar, son of Ravi Kumar. 15. Thereafter, as per the document, partnership deed dated 28.02.2018 was executed between Sh. Rajeev Pathria, Sh. Vivek Kumar, Sh. Deepak Joshi and Sh. Pankaj Gupta, vide which, the name of the firm has been given as ‘M/s Mountain Eco Tourism’, whereas, the present suit has been filed in the name of ‘M/s Banjara Mountain Retreat’. 16. Perusal of record further shows that in para No.1 of the plaint, there is an averment, with regard to a resolution, which was allegedly passed by the firm, authorizing Sh. Vivek Kumar, to file, verify and sign the present civil suit. However, no such resolution has been annexed with the plaint. 17. The defendant, in the present case, has also filed his written statement, by taking preliminary objections, that the suit is not maintainable, as, the suit land was leased in favour of Sh. Vivek Kumar and there is no privity of contract between the present plaintiff and the defendant. 18. The application has been filed, under Order XXIII Rule 1 of the CPC. Relevant part of Order XXIII Rule 1 of CPC is reproduced, as under:- “ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS 1. Vivek Kumar and there is no privity of contract between the present plaintiff and the defendant. 18. The application has been filed, under Order XXIII Rule 1 of the CPC. Relevant part of Order XXIII Rule 1 of CPC is reproduced, as under:- “ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS 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. (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 persons. (3) Where the Court is satisfied, - (a) that a suit mu st 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 authorize 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.]” 19. Bare perusal of above Order XXIII Rule 1 of the CPC reveals that there could be two types of withdrawal of the suit. First is the absolute or unqualified withdrawal and second one is the conditional or qualified withdrawal. 20. Since, the plaintiff is a dominus litis, as such, he can withdraw the suit, if the withdrawal is absolute or unqualified, whereas, in the present case, the plaintiff is seeking withdrawal of the suit, with permission to file a fresh suit, on the same cause of action. The withdrawal of the suit, without permission to file a fresh one, precludes the plaintiff to file the suit, on the same cause of action, whereas, the plaintiff, in the present case, is seeking the withdrawal of the suit with a prayer to file a fresh one, on the same cause of action and with a prayer to refund the amount, which he has deposited in the Registry. 21. The withdrawal of the suit has been sought, on the ground that the suit, filed by the plaintiff, will fail, on account of formal defect. Elaborating this defect, it has been pleaded that the suit should have been filed in the name of Sh. Vivek Kumar, in whose favour, the lease deed was executed, by the defendant, whereas, the same has been filed in the name of M/s Banjara Mountain Retreat, which, according to the plaintiff, is not a registered partnership firm, but, the same is a business entity. 22. The term ‘formal defect’ as appeared in Order XXIII Rule 1 of CPC, has nowhere been defined, in the CPC. The term ‘formal defect’ should be interpreted liberally and the same should refer to the defect not affecting the merits of the case. The suit has been filed by M/s Banjara Mountain Retreat, through Sh. Vivek Kumar. Certainly, there was no privity of contract between M/s Banjara Mountain Retreat and the defendant. 23. The term ‘formal defect’ should be interpreted liberally and the same should refer to the defect not affecting the merits of the case. The suit has been filed by M/s Banjara Mountain Retreat, through Sh. Vivek Kumar. Certainly, there was no privity of contract between M/s Banjara Mountain Retreat and the defendant. 23. In such a situation, the plaintiff is able to bring his case, within the definition of ‘formal defect’, which, even, cannot be procured, by moving application, under Order VI Rule 17 of CPC. The suit has been filed in the name of ‘M/s Banjara Mountain Retreat’, which is neither a legal entity, nor any privity of contract with the defendant. 24. As such, the application, under consideration, is allowed. Plaintiff is permitted to withdraw Civil Suit No.96 of 2021, with liberty to file a fresh one, on the same cause of action, subject to costs of Rs.20,000/-, to be paid to the defendant, at the time of filing of fresh suit. 25. Application is, thus, disposed of. OMP No.651 of 2022 26. In view of the order, passed in OMP No.434 of 2023, this application has become infructuous and the same is disposed of, accordingly. CS No.96 of 2021 27. In view of the fact that OMP No.434 of 2023 has been allowed, as such, the suit is dismissed as withdrawn, so also, the pending application(s), if any. 28. The amount, so deposited, by the plaintiff, before this Court, is ordered to be refunded back. 29. Since, the suit has been dismissed as withdrawn, with a liberty to file fresh one, as such, Court fee be refunded back to the plaintiff, as per law. COPC No.418 of 2021 30. Contempt Petition is ordered to be taken up, separately.