Kanhyia Lal and another vs Nathu and others

M.S. Liberhan, J.—Briefly the facts relevant to determine the question involved in this revision petition are that the Plaintiff-Respondents

filed a suit for mandatory injunction on the basis of title in the year 1980. Apart from various other pleas, the Defendants contended that the suit for

injunction and declaration simpliciter was not maintainable as they are in possession of the premises in dispute. During the pendency of the trial, the

plaint was amended. However, the relief claimed was never changed. The Defendants still have to lead their evidence. The trial is at the stage of

evidence.

The Respondents sought the withdrawal of the suit with permission to file a fresh suit on the same cause of aftion as the suit suffered from a

formal defect. The application was allowed inter alia holding that the Plaintiffs would not get the desired relief of possession in the present suit

though it was observed by the learned Sub Judge that there was no defect in the form of the suit.

The learned Counsel for the Petitioners contends that when a party to the lis can seek any relief by way of amendment, he cannot be allowed to

withdraw the suit with permission to file a fresh suit.

The learned Counsel for the Petitioners relied on Ashok Kumar v. Smt. Kala Devi 1984 P.L.J. 308, Dhandar Singh v. Niranjan Kaur 1986

P.L.J. 339, Piara Ram v. Ganesh Dass AIR 1976 P&H. 237 K. Chinna Vaira Thevar Vs. S. Vaira Thevar, , Amrik Singh v. Pritam Singh (1985-

2) 88 P.L.R. 44, and Raghbir Kaur v. Gurmej Singh (1985-1) 87 P.L.R. 44.

The learned Counsel for the Respondents refutes the submissions made and contends that the proper relief was not claimed in the suit and the

suit is likely to be dismissed as not maintainable. It is a formal defect and the trial Court has exercised its discretion in granting the permission.

There is no illegality or irregularity in the exercise of jurisdiction nor the Petitioners suffer materially in any respect in asmuch as the suit is still at the

trial stage and Defendants have to lead the evidence. It is not a fit case for interference in exercise of revisional jurisdiction. In view of the

undisputed facts that the Defendants Petitioners are in possession of the premises in dispute, the suit for declaration and injunction simpliciter

cannot be maintained. The learned Counsel relies on Brajamohan Sabato v. Sarojini Panigrahi AIR 1975 Ori 39 and Jai Jai Ram Manohar Lal Vs.

National Building Material Supply Gurgaon, .

In so far as Ashok Kumar''s case (supra) is concerned, it was observed as under:

Even if it may be said for the sake of argument that proper relief was not claimed, it could be done by way of amendment and there was absolutely

no reason to hold that suit was likely to fail on some technical ground

Admittedly in this case, this is not the position. It is not disputed at the Bar that the suit is liable to be dismissed solely on the ground that relief of

possession was not sought. The provisions of Order 6 Rule 17 of the CPC have to be read as not to make order 23 Rule 1 redundant. If the

sweeping contention of the Petitioners to the effect that where a suit can be amended, the permission to withdraw the suit cannot be granted, is

accepted, it would render Order 23 Rule 1 of the CPC obsolete. The Legislature has thoughtfully provided in Order 23 Rule 1(3) of the CPC that

Civil Court has jurisdiction to grant permission to withdraw the suit with liberty to file a fresh suit on the same cause of action where it is satisfied

that the formal defect pointed out by the parties may result in dismissal of the suit. The trial Court can also grant permission to withdraw the suit for

other sufficient grounds where justice and equity demand.

So far as Dhandar Singh''s case (Supra) is concerned, it is neither parimateria on facts nor law involved in the case in hand. Therein solely a

correction with respect to the date of will in the plaint was held to be not a formal defect on the basis of which the suit could have been dismissed.

In Piara Ram''s case (supra) it has been laid down that failure to summon witnesses or to prove the case is not a ground to grant permission to

withdraw the suit nor it is any formal defect. In the facts and circumstances of that case it was observed that there were no other sufficient grounds

for granting the permission to with draw the suit. This is not the case in hand Similar was the situation in K. Chinna Vaira Thevar''s case supra.

Amrik Singh''s case (Supra) again is not attracted to the facts of the present case inasmuch as in the said case the Plaintiff had already sought an

amendment of the relief clause from declaration to the suit for possession and it was found as a matter of fact that there was no formal defect.

In Raghbir Kaur''s case (supra) it was found as a fact that absence of the alleged parties who were not necessary parties, was not a formal

defect and even if they were proper parties, they could be added by way of amendment.

In my considered view and in view of the facts admitted at the Bar, that the suit in the present form was not maintainable being a simpliciter suit

for injunction and declaration inasmuch as the Defendants-Petitioners are in possession of the premises in dispute.. because, of the necessary relief

having not been claimed, the suit is liable to be dismissed without going for trial on merits, there is no doubt that the error of not claiming a proper

relief is a formal defect in the suit which can be remedied either by way of amendment or by withdrawing the suit with a permission to file a fresh

suit on the same cause of action. The trial Court keeping the facts and circumstances of the case in view in particular that the suit being still at the

trial stage and the rights of the parties having not been crystalised yet, rightly granted the permission to withdraw the suit. No error in exercise of

jurisdiction has been pointed out.

The Petitioners have further failed to show as to how they will suffer irreparably in particular when they are still to lead evidence. In my

considered view, if the impugned order is allowed to stand, it will not cause any failure of justice to the Petitioners. There is no doubt that the suit

has been pending for a long time without there being any substantial evidence having been recorded to finalise the suit. No mala fide worth the

name has been pointed out to be taken note of Again there is no doubt that costs is the panacea for negligence or lack of diligence to pursue the

litigation. Though the trial Court awarded costs of Rs. 1000/- before granting the permission to file a fresh suit on the same cause of action, in my

considered view it is only a token cost. The Plaintiffs have carried on the litigation for about four years in spite of the objection having been raised

at the initial stage. The costs is increased to Rs. 500/- in the facts and circumstances of the case.

I find no force in the revision petition. With the above modification in the impugned order regarding costs, the revision petition is dismissed

Costs to abide by the suit.