Bakhtwar Singh vs Block Development and Panchayat Officer and Others

Swatanter Kumar, J.—This revision is directed against the order dated 5.12.1998 passed by learned Civil Judge (Junior Division), Mansa. The application filed by the plaintiff for permission to withdraw the suit with liberty to file a fresh one on the same cause of action, was partly allowed by the learned Judge. The suit was dismissed as withdrawn while declining leave to file a fresh suit on the same cause of action.

It has been argued on behalf of the petitioner that the learned trial Court has fallen in error of jurisdiction in not granting the leave prayed for. In alternative, it is submitted that learned trial Court could not have accepted the application partly. In other words, it either ought to have dismissed the application, as a whole, or granted the entire relief prayed for.

In order to appreciate the merits of these contentions, reference to basic facts would be necessary. A suit for declaration and permanent injunction was filed by Bakhtawar Singh, Ex. Sarpanch, Gram Panchayat, Mansa Khurd. The challenge herein is to the order passed by Director Rural Development, Panchayat dated 4.10.1993 declaring a sum of Rs. 1,38,881/- as arrears of land revenue recoverable from the plaintiff. It is stated that the said order and notices etc are illegal, nonest and the defendants in the suit should be restrained from recovering the same. The suit was contested by the defendants. During the pendency of the suit an application was filed by the applicant-plaintiff which was opposed by the defendants in the suit. It has come on record that during the pendency of the suit the plaintiff had filed an application under Order 6 Rule 17 of the CPC praying for amendment of plaint. This application was allowed subject to payment of Rs. 2,000/- as costs and the State Government of Punjab through District Collector, Mansa was permitted to be added as defendant with the relevant averments made in the plaint. At this stage the following observations of the learned trial Court would be relevant to be noticed.

"He was provided with many opportunities and ultimately my Learned Predecessor Court passed order dated 19.7.1997 dismissing the suit against the proposed defendant No. 3 i.e. State of Punjab in the amendment, under Order 9 Rule 2 of CPC for non compliance of the order. My learned Predecessor Court has also observed that plaintiff on one pretext or other used to plead his inability to arrange the costs and his motive is merely to linger on the case. My learned Predecessor court has also drawn adverse inference against the plaintiff for non payment of costs. As earlier the Punjab Government has been impleaded as one of the necessary party and then suit against Punjab Government has been dismissed under Order 9 Rule 2 CPC and at no stage applicant/plaintiff has preferred any appeal or revision against order dated 19.7.1997 for dismissing the suit against Punjab Government-defendant No. 3. So now plaintiff cannot be allowed to file a fresh suit against the defendants. Otherwise the other permission sought by the plaintiff to withdraw this suit is hereby granted. So, in this view this application is partly allowed to the extent of giving permission to the plaintiff to withdrawing a suit. However, permission sought by the plaintiff to file a fresh suit on the same cause of action is hereby declined. No order as to costs."

The provisions of Order 23 of the CPC are intended to provide a protection against some apparent and technical defects in pleadings which would result in rejection of the plaint or on which the plaintiff would fail on merits. If such a defect is pointed out at the earlier stages of the suit, the legislature gives benefit to a plaintiff to file an application for withdrawal of the suit. Such application would have to be considered by the Court in accordance with law. The judicial discretion of the Court has to be controlled by the settled principles of law but no directive can ever be issued to a Court of competent jurisdiction as to what should be the order of the Court in the given facts and circumstances of a case. Exercise of discretion in accordance with law and reasoning for arriving at a conclusion is the very foundation of judicial decision. It is also a settled principle of law that once a plaintiff abandons or gives up his claim against any or all of the defendants, he would be debarred from bringing a fresh suit unless he had obtained leave of the Court. The purpose is obviously to prevent successive suit on the same cause of action and to avoid unnecessary multiplicity of litigation. The Court has to keep in mind that the claim which ought to have been raised but was not raised by a party, cannot be subsequently raised without the leave of the Court. These settled principles of law are found on basic principle of res judicata or constructive res judicata, as the case may be. Under Sub rule (3) of Rule 1 of Order 23, the Court has to state reasons and cause which would constitute a sufficient ground for allowing the plaintiff to file a fresh suit on same subject matter of the current suit. The collective reading of Sub-rules (3) to (5) of Rule 1 of Order 23 clearly demonstrates the following ingredients and conditions which must be satisfied before the Court which is called upon to pass an order of withdrawal of a suit with liberty to file a fresh one.

The Court must satisfy that suit must fail by reason of formal defect; or

There should be sufficient grounds for allowing the plaintiff to file a fresh suit on the same subject matter.

But it is necessary that if the plaintiff abandons the suit or any part of the claims and he does not have permission of the Court to do so, he shall be precluded from instituting a fresh suit in regard to such subject matter or part thereof.

Any order has to be passed in consonance with the principles of natural justice by affording opportunity to the non applicant. The essence of the aforestated provisions is that the Court upon granting fair opportunity to the other party, having satisfied itself with the sufficiency of grounds and the fact that the suit suffers from a formal defect, may pass an order permitting the plaintiff to withdraw the suit with liberty to file a fresh one on the same cause of action. If upon considering the merits of the application the Court answers the above three ingredients in the negative against the applicant, the Court would be fully justified in rejecting the application as a whole.

The learned counsel appearing for the petitioner relied upon judgment of this Court in the case of Surjan Singh and Others Vs. Amarjit Singh and Others, , to argue that application could either be accepted or rejected by the learned trial Court but the order alike the impugned one could not have been passed in law. On the other hand, the learned counsel appearing for the respondent has relied upon judgments of this Court in the cases of Baru Ram and Another Vs. Baldeva and Others, , Bansi Lal Clarance Vs. The United Church of Northern India Trust Association and Another, , and a Division Bench of this Court in the case of Chander and Ors. v. Gulzari Lal and Ors. (1979) 81 PLR 637. As far as the law settled by the Division Bench and the judgments of learned Single Judge is concerned, it can hardly be a question of any controversy. According to law settled in the case of Gulzari Lal (supra), the Bench held that mere inability of the plaintiff to produce the relevant record or his adequate evidence to substantiate the claim cannot be treated either as formal defect in the suit or a good or sufficient reason for instituting a fresh suit on the same cause of action. Further, it was held that the trial Court must specify in the order the reasons for granting leave. In the present case the learned Judge on the facts of the case found that the plaintiff had been negligent and erring intentionally in complying with the orders passed by the Court at different stages. Having failed to comply with the directions of the Court, the plaintiff now cannot turn back and say that the suit is suffering from a formal defect. More particularly, when the application under Order 6 Rule 17 filed by the plaintiff-applicant was allowed subject to costs and he failed to pay the costs.

In this regard, I am unable to see any error of jurisdiction or otherwise in the impugned order. However, the fact or question of law, where the learned trial Court appears to have fallen in error, is that it had accepted the application for withdrawal of the suit but declined the permission to file a fresh suit on the same cause of action, when the prayer was a composite one i.e. for withdrawal of the suit with liberty to file a fresh one. Such prayers are composite in nature and the principle of severability would not be applicable keeping in mind the provision of Order 23 of the Code of Civil Procedure. Having found no sufficient cause for granting the permission and specifically noticing the conduct of the plaintiff, the learned Court ought to have dismissed the application simplicitor. The jurisdiction of the Court does not extent, to depriving the plaintiff of pursuing his suit unless he had so conceded or prayed for that unconditionally. In my view the learned trial Court would have obliged to dismiss the application as a whole and left it for the plaintiff to continue or not, with the suit instituted by him. It will not in coherence with the settled principles of procedural law that the Court allows, the prayer partly by detaching the condition attached to such a prayer and acts to the prejudice to the rights of the plaintiff in the main suit. In this regard I would follow the view taken by this Court in Surjan Singh''s case (supra) that the learned trial Court could either dismiss the application or allow the same but could not take recourse to the passing of the impugned order. The order of this kind within the purview and scope of Order 23, cannot be equated with the discretion of the Court under Order 39 or such allied provisions of the Code of Civil Procedure, where the Court can impose such conditions as may deem necessary in the interest of justice or to meet the ends of justice despite the nature of prayer of plaintiff in the application.

For the reasons aforestated, I would modify the order passed by learned trial Court limited to the extent that the application for withdrawal of the suit with leave, to file a fresh one, filed by the plaintiff is dismissed with costs which are assessed at Rs. 1,000/-. The trial Court shall proceed with the suit in accordance with law. Parties are directed to bear their own costs.