Kanhyia Lal and Others 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 state of evidence.

The respondents sought the withdrawal of the suit with permission to file a fresh suit on the same cause of action 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 thought it was observed by the learned Sub Judge the there was no defect in the form of the suit.

The learned counsel for the petitioners contends that when a party to 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 and others, 1984 PLJ 308, Dhandar Singh and others v. Niranjan Kaur and others, 1986 PLJ 330, Paira Ram and Another Vs. Ganesh Dass and Others, K. Chinna Vaira Thevar Vs. S. Vaira Thevar, , Amrik Singh v. Pritatn Singh and others, 1985(2) PLR 44 and Raghbir Kaur v. Gurmej Singh, 1985 (1) Punjab Law Reported 226.

The learned counsel for the respondents refutes the submission 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 petitioner suffer materially in any respect inasmuch 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 defendant-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 Vs. Sarojini Panigrahi and Another, and Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 Supreme Court 1267.

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 emended, 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 (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 is 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 pari materia ot facts nor law 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 Rams 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 withdraw the suit. This is not the case in hand. Similar was the situation in K. Chiana 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 may 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 he 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 of 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 R.S.500A in the facts and circumstances of the case.

I find no force in the revision petition. Will the above modification in the impugned order regarding costs, the revision petition is dismissed. Costs to abide by the suit.