R. Thyagarajan vs Meenakshi Ammal

Abdul Hadi, J.—The defendant in O.S. No. 5614 of 1987 has filed this civil revision petition against the order dated 16.10.1995 in I.A.

No. 11190 of 95. The said LA. filed by the respondent/plaintiff sought permission to withdraw the suit with liberty to file a fresh suit The said

prayer has been granted by the impugned order on condition the plaintiff pays a sum of Rs. 200 on or before 25.10.1995. Aggrieved by the said

order, the defendant has preferred this civil revision petition.

The material allegation in the affidavit in support of the I.A. is as follows:-

Since the plaint needs lot of amendment by incorporating a new Schedule regarding the encroached portion of the defendant and also the

amendment of the Schedule to the plaint by mentioning the backyard portion alone, the plaint has to be amended suitably. To Avoid more

corrections and also amendment, I am advised to file a new suit for the same cause of action.

As already stated, the suit was filed as early as 1987 and it is not even stated in the supporting affidavit when actually the plaintiff realized that

the plaint needed such amendments. Actually speaking, as already pointed by the learned counsel for the petitioner, the plaintiff filed I.A. 16657 of

1990 for amendment of the plaint and it was allowed. Apart from stating so in the counter affidavit, the said counter affidavit also states that the

respondent filed even I.A. No. 16658 of 90 for appointment of an Advocate-Commissioner for having local inspection of the suit property. Even

though the Commissioner was appointed in the said I.A. by order dated 20.12.90, the said I.A., according to the Counter-affidavit, was closed on

6.4.1994 for not executing the Commission of Warrant. Then it docs not appear why the plaintiff has not taken any further action in the matter.

That apart, the counter-affidavit also states that the suit was posted for trial in the special list on 1.7.1994 and the suit was adjourned to 12.7.1994

at the instance of the plaintiff. Thereafter, P.W.I was examined and the suit was posted to 26.7.1994 for the cross-examination of P.W.I. P.W.I

was absent on 26.7.1994. The suit was therefore, adjourned to 1.8.1994 as a last chance for the cross-examination of P.W.I. P.W.I was again

absent. Hence the suit was adjourned to 2.8,1994 on which date also, the plaintiff was absent and the suit was dismissed for non-prosecution by

the plaintiff. For all those and so many other similar allegations against the plaintiff no reply affidavit seems to have been filed.

In such a situation, as rightly pointed out by the learned Counsel for the petitioner, there is no case at all for invoking Order 23, Rule 1(3) of the

Code of Civil Procedure. The said rule says:

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... with liberty to institute a fresh suit in respect of the subject matter of

a such suit.

It is clear to me that there is no formal defect involved at all in the present case. If really the plaintiff wanted to further amend the plaint, even after

the abovesaid I.A. No. 16657 of 1990 he could have filed immediately after I.A. No. 16657 of 1990 was filed necessary application for amending

the plaint without doing so, only in 1995, the present I.A. is filed. Order 23, Rule 1 (3) of the Code cannot be invoked unless the suit must fail by

reason of some formal defect. No doubt, in clause (b) of the said Rule 3, it is mentioned that even for sufficient grounds similar relief could be

granted. But even then the term ""sufficient grounds"" have been interpreted to mean grounds skin to the earlier mentioned ground of formal defect.

At any rate, the claim made in the I.A. cannot at all be a sufficient ground for invoking Order 23, Rule 1 (3) of the Code. The plaintiff could have

very well filed an I.A. seeking amendment of the plaint. Without filing an application for amendment of the plaint, (if really any new amendment is

necessary) he cannot in the above circumstances invoke Order 23 Rule 1 (3) of the Code.

No doubt, learned Counsel for the respondent sought to rely on the decision Geeta Bose and another Vs. Machine Tools of India Ltd, . Even

there, the observation in para 7 is as follows:-

There are, however, authorities for the view that the expression ''sufficient grounds'' in Clause (b) of Rule 1(3) is to be construed ejusdem generis

with the expression ''formal defect'' in Clause (a) and that, at any rate, the ground to be sufficient within the meaning of Clause (b) must be akin or

at least analogous to ''formal defects"" and the Bombay Full Bench decision in Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, and the

Allahabad Full Bench decision in Abdul Ghafoor Vs. Abdul Rahman, are, among others, such authorities. There are contrary authorities also as

would appear from, among others, the Gauhati decision in Union of India v. Manoranjan Banik, AIR 1956 Gau 1 and the Orissa decision in Atul

Krushna Roy Vs. Raukishore Mohanty and Others, and in Duryodhan Jena Vs. Satyabadi Samal and Others, . If it were necessary for us to finally

decide the question, we would have respectfully dissented from the former view and agreed with the latter....

In other words, even the said decision did not ""finally decide"" to resolve the conflicting views expressed by the High Courts. At any rate, as I have

already by pointed out, there is absolutely no ground for holding that based on the above referred to allegation in the supporting affidavit, the suit

could be allowed to be withdrawn with liberty to file a fresh suit, about eight years after the suit has been filed and that too after the above referred

to conduct exhibited by the plaintiff as expressed in para 7 of the counter-affidavit to the I.A. Accordingly, I hold that the Court below has

committed jurisdictional error. Accordingly it is set aside and the civil revision petition is allowed. No costs.