Chhathu Sahu and others vs Charu Chandra Sinha

Dhavle, J.—This is an application in revision against an order of the Munsif of the Second Court at Bhagalpur, allowing the withdrawal of a suit with liberty to the plaintiff to sue afresh.

The learned counsel for the petitioners, defendants in the Court below, urges that the order passed by the lower Court is not warranted by the terms of O. 23, R. I, Civil P.C., and in support he refers to Nathuni Ram v. Mt. Sheo Koer, 1918 Pat 452 = 46 IC 179 = 3 Pat LJ 460 and Mahendra Ram v. Singh Lal, 1918 Pat 261 = 48 IC 197 & 608 = 3 Pat LJ 651, in which it was pointed out that the; existence of the conditions laid down in O. 23, R. 1 is essential to the exercise of jurisdiction under that provision of, the law. In the second of those two cases, it was also laid down that a suit may only be withdrawn under Cl. (b) of sub-R. (2), of the rule in question when the other sufficient grounds are closely analogous to the ground given in Cl. 1. Cl. 1 deals with the case where a suit must fail by reason of some, formal defect, and the second, where there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. In the present case, the order of the lower Court does not indicate either the one or the other. The learned Munsif first deals with the objection of the defendants to the withdrawal applied for, an objection which was based on the ground that permission cannot be granted where the plaintiff has got alternative causes of action. The learned Munsif overrules this objection on the ground that the present was not a case of alternative causes of action. He may have been right in this but obviously that does not bring the case within either clause of sub-R. (2). The learned Munsif then refers to two cases and distinguishes them on the ground that in those cases evidence had, unlike the present case, been already recorded. This, again, does not come anywhere near the requirements of either clause of the subsection. And then the learned Munsif concludes:

I therefore think the plaintiff is not precluded in the present case from getting permission to sue afresh.

The question was not whether the plaintiff was precluded, but whether the plaintiff was entitled under sub-R. (2) to receive permission to withdraw. It is perfectly clear that the learned Munsif has not applied his mind to the requirements of the law; and it has been repeatedly held that failure to do so in connexion with O. 23, R. 1 is good reason for interfering in revision. The learned advocate for the opposite party has endeavored to support the order of the lower Court by showing, not that the suit as framed was bound to fail--for that is only required under Cl. (a) of the sub-rule--but that there were in the present ease defects analogous to the defects contemplated in that clause. I am not at all satisfied that there were such defects Mr. Mullick has drawn attention to the Full Bench decision in Narendra Nath Barari v. Abhoy Charan, (1907) 34 Cal 51 = 4 CLJ 437 = 11 CWN 20 (FB), to show that a suit is not liable to be dismissed because the plaintiff claims in the alternative over the same plot of lands rights, firstly of ownership and secondly of easement. He points out that the amendment that he unsuccessfully sought from the lower Court was an amendment to which he was entitled within the Full Bench ruling.

The fact that the lower Court disallowed the amendment does not however make the suit as instituted defective in any respect. It was a suit based on plaintiff''s title to plot 47. Mr. Mullick says that plaintiff''s alternative case is that even if the structure built by the original defendant be found not to encroach on plaintiff''s plot 47, he still has a grievance in that the structure is an encroachment on land over which the plaintiff has a right of way. That would be an alternative case. The Full Bench case referred to by Mr. Mullick would entitle the plaintiff to combine these two cases with their respective causes of action; but that is not the same thing as saying that it compels him to do so. Nor has Mr. Mullick shown that there is anything in the law requiring the plaintiff to sue on his title and also on the right of easement at one and the same time. Mr. Mullick has urged that the Court should not compel the plaintiff to proceed with a suit which might end in an in fructuous decree. But why that should happen, I am unable to understand. If plaintiff fails in the suit as framed and it is a suit based on his title it will not be that he will obtain a decree which is in fructuous, but that the suit will be dismissed. He can then presumably proceed on his right of easement. I say "presumably", because Mr. Mullick has not shown me that the failure of the title suit will bar the suit on the right of easement; nor is it the case of the other side that that will be the result. What the plaintiff tried to do finally was not merely to combine an action based on his right of easement with the suit, as originally framed, against the same defendants, but also to add the wife of defendant 1 in respect of something else that she had done by applying to the Municipality for permission to erect a latrine. I am not surprised that the lower Court refused to let the plaintiff add this to his plaint by way of amendment.

It is therefore clear that the lower Court has assumed jurisdiction which it did not possess and acted with material irregularity in exercise of such jurisdiction as it may have possessed in giving leave to the plaintiff to withdraw from the suit with liberty to institute a fresh suit when the conditions of neither clause of sub-S. (2), O. 23, R. 1 were satisfied. The order of the lower Court must therefore be set aside; and the lower Court directed to proceed with the suit in accordance with the law.

The petitioners will be entitled to the costs of the hearing, including a hearing fee of one gold mohur.