Rabizul Ali Laskar and Others vs Saibur Raja Laskar and Others

Amitava Roy, J.—This revision petition u/s 115 of the CPC has been directed against the order dated 10.6.96 passed by the learned Sadar Munsiff No. 2, Silchar in Title Suit No. 155 of 1992 rejecting the application filed by the Petitioners-Plaintiffs to withdraw the suit with a liberty to file a fresh suit.

I have heard Mr. H.R.A. Choudhury, learned Counsel for the Petitioner and Mr. S.A. Laskar, learned Counsel for the opposite party.

The admitted facts are that the Petitioners as Plaintiffs filed Title Suit No. 155 of 1992 before the learned Court below praying for a decree inter-alia for declaration of their title in respect of the suit land as well as for confirmation of their possession thereof. They also prayed for a decree for permanent injunction in respect of the suit land. The opposite party-Defendants appeared in the suit and filed their written statement inter-alia contending that suit was not maintainable on the ground of non-joinder of necessary parties keeping in view the issue to be decided, it is not necessary to go into the details of cases of the parties on merits.

The Petitioners-Plaintiffs during the pendency of the suit filed an application on 29.3.96 praying for necessary orders to allow them to withdraw the suit with a liberty to institute a fresh suit. In the said application the Petitioners contended that the suit suffered from some formal defects and therefore it was necessary to withdraw the same with the liberty as prayed for. In the petition, the Petitioners mentioned the formal defects as hereunder:

(1) The Petitioners due to mistake had not mentioned in the plaint the following facts:

(a) Possession of a portion of the land of the suit patta covered by Dag No. 203 and 201 was taken by the State Government under the provision of Ceiling Act and thereafter an area of 1 Bigha 14 Katha 8 Chatak was reallotted to the Petitioners.

(b) All co-sharers of the patta ought to have been made parties.

(c) An area of land measuring 2 Katha 12 Ch. in Dag No. 289 of the suit patta stood in the name of Wakf with a Mosque thereon.

(2) State of Assam was a necessary party and that the suit was filed without Service of notice u/s 80 Code of Civil procedure.

A written objection to the said application was filed on behalf of the opposite party-Defendants wherein they inter-alia contended that the application was barred by the principle of res-judicata. They further contended that the defects mentioned in the application were not formal defects and would go to the root of the case and therefore could not be taken in isolation for the purpose of granting permission to withdraw the suit and granting liberty to file a fresh suit. The opposite party-Defendants in their written objection categorically contended that the defect of non-joinder of parties cannot be said to be a formal defect in any view of the matter and therefore the application was early not tenable in law. It was inter-alia stated in the petition that similar petition on same places had been submitted earlier and the learned trial Court after hearing both the parties had rejected the same.

The learned trial Court after considering the application and the written objection filed and after hearing the parties by the impugned order rejected the same holding that the defects pointed out in the application were not formal defects and that there was also no other sufficient ground to entertain the prayer made on behalf of the Petitioners.

Mr. H.R.A. Choudhury learned Counsel for the Petitioners has argued that the defects mentioned in the application rejected by the learned trial Court are all formal defects keeping in view the frame and character of the suit and therefore the learned trial Court erred in law in passing the impugned order. In support of his contention the learned Counsel has placed reliance on several decisions of different High Courts as well as Supreme Court namely AIR 1957 Mad 207 A.V.S. Perumal Vs. Vadivelu Asari, A.V.S. Perumal v. Vadivelu Asari AIR 1989 NOC 193 (Orissa), Hirendra Debbarma and Others Vs. Rebati Mohan Debbarma, Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co., P.C. Purushothama Reddiar Vs. S. Perumal, , AIR 2000 SC 2132 K.S. Bhoopathy and Ors. v. Kokila and Ors..

Controverting the above submissions of the learned Counsel for the Petitioner, Mr. Laskar the learned Counsel for the opposite party-Defendants has strenuously argued that the defects mentioned in the application cannot, by any stretch of imagination be set to be formal defects. Continuing his arguments mainly on the issue of non-joinder of necessary parties, the learned Counsel for the opposite party has vehemently argued, that non-joinder of a necessary party cannot be said to be a formal defect as it affects the maintainability of the suit. The learned Counsel submitted that as admittedly in the present case, necessary parties have not been joined the suit was liable to fail and the present Petitioner being desperate to somehow save the suit had made the prayer to withdraw the suit with a liberty to file a fresh suit. He has also submitted that the application is not a bonafide one inasmuch as a similar application with same pleas had been filed earlier which was rejected by the learned trial Court and therefore in any view of the matter, the impugned order passed by the learned Court below was perfectly legal and calls for no interference in exercise of the power of this Court u/s 115 Code of Civil Procedure. Mr. Laskar in support of his submissions has drawn the attention of this Court to the proviso to Order 1 Rule 9 CPC as well as Section 99 of the Code. He argued that after the amendment of the CPC by Act 104 of 1976, it had been made clear by the law makers that non-joinder of necessary party could be fatal and could not be said to be a formal defect within the meaning of Order 23 Rule 1 Code of Civil Procedure. The learned Counsel also cited several decisions of different High Courts including this Court which may be mentioned as hereunder Atul Krushna Roy Vs. Raukishore Mohanty and Others, Khatuna and Another Vs. Ramsewak Kashinath, a partnership firm and Another, Chuba Temsu Ao and Others Vs. Nangponger and Others, Chuba TemsuAo and Ors. v. Nangponger and Ors. 2000(1) GLT 237 Lepa Ram Bow and Ors. v. Nabin Chandra Boro and 1997(1) GLT 512 The Executive Director, Hindustan Paper Corporation Ltd. and Ors. v. Ramavash Bind and Ors.

I have given my anxious consideration to the rival contentions of the parties. On a reading of Order 23 Rule 1 of the CPC it is clear that an order granting Plaintiffs prayer to withdraw fcom a suit with a liberty to institute a fresh suit can be passed only if the Court is satisfied that either the suit suffers from formal defects or there are sufficient grounds to allow the Plaintiff to withdraw the suit with a liberty to file a fresh suit for the subject matter of suit or a part of the claim. Apart from the fact that this relief is a dicretionary one, satisfaction of the Court is a condition precedent for exercise such power and such satisfaction, it goes without saying, has to be based on the materials on record. If on a consideration of the materials on record a Court finds that the condition precedent in exercise of the power under the above provision of law is not present and consequently the prayer for withdrawal of the suit with a liberty to file a fresh suit is rejected, the same would not result in any error of the jurisdiction by the Court warranting interference by this Court sitting in revision.

In Sambanda Naicker and Others Vs. Ranganayaki Ammal and Another, the Madras High Court while considering the import of Order 23 Rule 1(3)(a) & (b) CPC observed that in order to pass an order in favour of withdrawal of a suit a Court must be satisfied that sufficient grounds exist for the same. In the case reported in A.V.S. Perumal Vs. Vadivelu Asari, , it was observed that in order to succeed in an application filed under Order 23 Rule 1(3) Code of Civil Procedure, the Court has to be satisfied about requirements mentioned therein. Their Lordships held that it was not permissible to allow the Plaintiff in that case to withdraw the suit with a liberty to file a fresh suit, as the prescribed requirements were not fulfilled. Their Lordships of the Orissa High Court in AIR 1989 NOC 193 (Orissa) observed that "formal defect" is a defect in form and procedure and not a defect in substance or touching the merits of the case and that the relief under Order 23 Rule 1(3) CPC was a discretionary one. This Court in the case reported in Hirendra Debbarma and Others Vs. Rebati Mohan Debbarma, was dealing with a situation where a suit was dismissed and the matter was pending in appeal and it was before the appellate forum that the application was filed for permission to withdraw the suit. The first appellate Court allowed the prayer setting aside the decree of the trial Court. In second appeal before this Court, it was argued that the order of the first appellate was without jurisdiction. It was inter-alia observed by this Court in the decision that it was only in a case that the suit was liable to be dismissed on technical grounds for want of cause of action, defect of parties etc. that such a withdrawal was permissible. In Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co., the Apex Court was more particularly dealing with the scope of Order 23 Rule 1 Sub-rule (1) which did not involve any prayer for liberty to file a fresh suit, which in my opinion is not attracted to the facts to the present case. In AIR 2000 SC 2132 K.S. Bhoopathy and Ors. v. Kokila and Ors. (supra) the Apex Court laid down that it is the discretion of the Court to grant the leave as mentioned in sub-rule 3 of Order 23 Rule 1 and such discretion has to be exercised by the Court with caution and circumspection. It was further held that the Court must be satisfied about the sufficiency of the grounds, as mentioned in Clause (b) of Sub-rule (3) for allowing the Plaintiff permission to withdraw the suit with liberty to institute a fresh suit. It was held that the Court was to discharge the duty mandated under the provision of Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action.

Adverting to the provisions of law and the decisions cited by the learned Counsel for the parties I find that after the amendment of the CPC in 1976, omission to implead a necessary party in a suit is fatal for the suit and touches for maintainability thereof. This amendment of 1976, as Mr. Laskar, submits is with some purpose. He further submitted that therefore, in a suit where a necessary party has not been joined, there is no scope for the Plaintiff to withdraw the suit on the ground of formal defects. I am inclined, in the facts and circumstances of the case to agree with the submission of the learned Counsel for the opposite party-Defendant. In the case reported in AIR 1957 Madras 207 their Lordships observed that a formal defect is a defect of form. It is noticeable that their Lordships while setting out the categories of defects as formal defects have left out "nonjoinder of a necessary party" as a formal defect. In the case of 1997(1) GLT 512 The Executive Director, Hindustan Paper Corporation Ltd. and Ors. v. Ramvash Bind and Ors. (supra), this Court held that non-joinder of a necessary party to a suit is not a formal defect as the same strikes at the root of the suit and therefore in such a case provision of Order 23 Rule 1 is not be attracted. This Court in the two decisions reported in Chuba Temsu Ao and Others Vs. Nangponger and Others, held that a necessary party is one without whom no order can be made effectively and non-joinder of necessary party is fatal to the suit. It was held that if in a suit a necessary party is not added it shall have to be dismissed. This Court in a decision reported in 2000(1) GLT 237 Lena Ram Boro and Ors. v. Nabin Chandra Boro)(supra) while dealing with expression "necessary party" and "appropriate party" had held that a necessary party is one without whom no order in a suit can be effectively made and a suit cannot be decreed in absence of a necessary party. This Court again in the case reported in 1997(1) GLT 512 The Executive Director, Hindustan Paper Corporation Ltd. and Ors. v. Ramvash Bind and Ors. (supra) had held that if a necessary party is not impleaded in the suit, the Court is to dismiss the suit on that ground alone as otherwise the decree passed will be a futile one.

On a consideration of the authorities submitted by both sides as well as the submissions made, it is overwhelmingly clear that the defect of a non-joinder of a necessary party in a suit cannot be said to be a formal defect within the meaning of the Order 23 Rule 1(3) Code of Civil Procedure. In the present case, admittedly necessary parties have not been joined. On a perusal of the application, I am also not satisfied that any other sufficient cause has been mentioned to entertain the prayer of the Petitioner/Plaintiff for withdrawal of the suit with a liberty to file a fresh suit.

In that view of the matter, this Court is of the opinion that the impugned order does not suffer from any illegality or error of jurisdiction calling for any interference by this Court. The revision petition is without any merit and is therefore dismissed. There would be no order as to costs.