Mst. Maina Devi and another vs Ved Parkash and another

J.S. Sekhon, J.—The defendant has directed this civil revision against the order dated 23.1.1980, passed by Shri B.S. Sharma, Subordinate Judge 1st Class, Charkhi Dadri. allowing the plaintiffs to withdraw their suit with permission to file a fresh suit on the same cause of action.

Ved Parkash and Ram Kumar respondents have failed to turn up despite service. Thus, this petition was heard in their absence.

In brief, the facts relevant for disposal of this revision petition are that Ved Parkash and another filed a suit for permanent injunction against the defendants on October 10, 1978. It was fixed for final arguments on January 23, 1980 when the plaintiffs moved an application, under the provisions of Order 23 Rule 1 of the Code of Civil Procedure, for withdrawal of the suit contending that another civil suit titled ''Ved Parkash v. Municipal Committee'' had already been decided and the appeal against the said judgment and decree was pending in the Court of District, Judge, Bhiwani. He also maintained that the fate of the present suit depended upon the fate of the above referred appeal. Some formal defects were also alleged. The defense of the defendant in the parent suit was that since the plaintiffs were not owners of the Jhiri in question, they had no locus standi to file the suit.

The trial Court accepted the application of the plaintiffs to withdraw the suit by holding that whether the property in question is a public street or not, can be decided in case the plaintiffs bring a fresh suit on the same cause of action.

Mr. M.L. Sarin, learned counsel for the petitioner contended that the suit can be allowed to be withdrawn under the provisions of Order 23 Rule 1, C.P.C., if it is likely to fail due to some formal defect and not on the ground of earlier suit having been decided or due to mis-joinder of necessary parties. Reliance in this regard was placed on the findings of the Division Bench of the Court in Chander etc. v. Gulzari Lal etc. (1979) 81 P.L.R. 637.

The relevant provisions of Order 23 Rule 1, of the Code, runs as under:-

(1) xx xx xx

(2) xx xx xx

(3) Where the Court is satisfied,-

(a) that a suit must 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) xx xx xx xx

None of the contingencies envisaged by the above said Rule are available in the present case as the mere decision in the earlier suit cannot be said to be a good ground for permission to withdraw the subsequent suit although it can be a good ground for staying the proceedings in the later suit The formal defect in this case pertains to non-impleading of the Municipal Committee but the joinder or the non-joinder of a necessary party cannot be said to be a formal defect by any stretch of imagination. In Chander etc case (supra), the Division Bench of this Court had taken a similar view by holding that the trial Court had not even chosen to specify far from pin pointing the formal defect from which the suit is likely to fail. In the present case the trial Court had not, at all, discussed as to how the finding in the earlier suit would amount to formal defect in the present case or that what were the other formal defects taken by the plaintiffs in their application for permission to withdraw the suit. A similar view was taken by this Court in Smt. Mann Kaur v. Gurdial Kaur and others 1978 R.L.R. 4, by holding that some vague objection by the defendant in the written statement about the maintainability of the suit is not sufficient to allow withdrawal of the same with liberty to file a fresh one on the same cause of action. In Guruharan Singh v. Smt. Nihal Kaur etc. 1975 C.L.J. 719, it was held that ''formal defect'' within the meaning of Rule Order 23 of the Code would not cover non-joining of proper parties or to the correct description of the disputed land or that proper court fee was not paid. On the other hand, it was held that the formal defect must not affect merits of the case but it should have the effect of shutting out fair trial on the merits on account of an error which can only be set right by a fresh trial. Reliance was placed in this regard on the observation of Dua J. (as he then was) in Chhindo v. Mela Singh and others L.R. (1967) 2 P.&H. 6.

For the foregoing reasons, the impugned order of the trial Court being not legally sustainable, is hereby set aside by accepting the revision petition ex parte. There will be no order as to costs. The defendant petitioner through her counsel is directed to appear before the trial Court on 8.9.1988 The trial Court shall restore the suit against its original number and dispose of the same after giving due notice to the plaintiffs in person or through their counsel.