Ram Kumar vs Om Prakash

Tarlok Singh Chauhan, J.—This revision petition under Section 115 of the Code of Civil Procedure is directed against the order dated 19.7.2014 passed by learned Additional District Judge, Nahan, in application under Order 23 Rule 1 CPC filed by the petitioner whereby the same was dismissed.

Briefly stated, the facts are that the petitioner/plaintiff filed a suit for declaration to the effect that he is owner in possession of land comprised in Khata Khatauni No. 135 min/192 min, Khasra No. 1381 and 1384, Kita 2 total measuring 190.67 sq. mtrs. and the order dated 22.11.2002 passed by the Settlement Officer, Shimla in case No. 77 of 2002 was illegal, without jurisdiction and not binding on the right, title and interest of the petitioner and that the sale deed No. 1064 registered in the office of Sub Registrar, Paonta Sahib on 7.7.2006 was illegal, without jurisdiction and therefore, not binding upon the petitioner/plaintiff because the plaintiff had purchased the suit land vide sale deed No. 122 executed between the plaintiff and defendants No. 1 and 2 on 31.12.1959.

The respondents/defendants No. 1 and 2 contested the suit by filing written statement wherein it was alleged that the so called sale deed dated 31.12.1959 was a document which was void, ab initio, illegal and unenforceable in the eyes of law since the defendants were minors and could not have legally execute the sale deed. In fact the defendants never executed the sale deed and claimed that they never signed the same or appeared before any registering authority. The sale deed according to them was a result of manipulation, concoction and forgery on the part of the plaintiff. It was also denied that the plaintiff was in possession of the suit land as alleged and defendants No. 1 and 2 claimed exclusive possession and control of the suit land. It was claimed that the sale deed executed by them in favour of defendant No. 3 was legal and after execution of the sale deed, the defendant No. 3 had been put in possession of the suit land, who thereafter was its complete owner and in possession thereof.

The defendant No. 3 contested the claim of the petitioner by filing a separate written statement wherein it was claimed that he was bonafide purchaser for a consideration of Rs. 3,50,000/- which he has paid after due enquiry and had found the title of the defendants No. 1 and 2 to be clear and, therefore, this suit was not maintainable. It was alleged that the plaintiff has no concern with the suit land so purchased by him. It was further claimed that the Settlement Officer had decided the matter in accordance with the factual position and law and the plaintiff was aware of the same and still did not choose to question the same before the appellate forum and the Civil Court had no jurisdiction to sit over the order so passed by the learned Settlement Officer.

Replication was filed by the petitioner to the respective written statements of the defendants wherein the pleas as raised in the plaint were reiterated and re-affirmed and contrary pleas so raised by the defendants were denied.

The learned trial Court vide its judgment dated 5.1.2013 dismissed the suit and aggrieved thereby, the plaintiff filed an appeal before the learned lower Appellate Court. During the pendency of the appeal, the petitioner filed an application under Order 23 Rule 1 CPC for withdrawal of the suit with permission to file a fresh on the same cause of action on the allegation that there were formal defect in the suit inasmuch as the petitioner has claimed ownership of the suit land 0-4 bighas comprised in Khasra No. 166/1 on the basis of sale deed No. 122 dated 31.12.1959, whereas in the previous settlement this property had been shown by Khasra No. 155. It has further alleged that the learned trial Court while deciding the case had held that the suit property alleged to be purchased by the petitioner was a different one being part of Khasra No. 166, whereas the suit property is part of Khasra No. 166/1. It was further alleged that the link evidence to ascertain the identity of the suit property was also missing because of such pleadings and, therefore, the suit should not be thrown out only for want of identification of the suit property and further the petitioner could not be punished for such technical lapse on the part of his counsel.

The application was resisted and contested by the respondents/defendants on the ground that as per plaint, the plaintiff purchased the land measuring 4 biswas comprised in Khasra No. 166/1 and claimed Khasra Nos. 1381 and 1384 to be the new khasra numbers. It had further been asserted that the name of the defendants No. 1 and 2 as owners had been wrongly recorded in the settlement proceedings but it was nowhere pleaded that the suit property is bounded by the property of Municipal Committee, Paonta Sahib, house of Amarjeet Singh, Shyama Sharma and Anil Kumar. The plaintiff had proceeded to lead evidence to prove the fact that the suit property is part of the property so purchased through sale deed dated 31.12.1959 and, therefore, there was no question of non-linking of the suit property with the property mentioned in the sale deed. It was alleged that by filing the application, the petitioner had unnecessarily dragged the respondents in further litigation for no fault of theirs and since there was no formal defect in the suit, the petitioner could not be allowed to withdraw the suit.

The learned lower Appellate Court after taking note of the provision contained in Order 23 Rule 1 CPC held that in the instant suit the learned trial Court had specifically held that the defendants No. 1 and 2 alongwith co-sharers had been recorded owners in possession of the suit property and the case of the plaintiff was for declaration that he had become owner of the suit property on the basis of sale deed No. 122 dated 31.12.1959 Ex. P-1, which was dismissed. Further, in case the present application is allowed, it would have the effect of destroying and nullifying the right which had come to be vested under the decree in favour of the defendants, the same could not be taken away by withdrawal of the suit. It was further held that the plaintiff could not be permitted to withdraw the suit merely on the ground that the identity of the suit property had not been established by him on record as the same could not be construed to be a formal defect which would allow and give an opportunity to the plaintiff to commence the trial afresh, after he had failed in the suit filed by him on the basis of evidence, which he had filed with due care and diligence. It was lastly held that the object of Order 23 Rule 1 CPC was not to allow and give opportunity to the plaintiff to commence the trial afresh and the suit could not be permitted to be withdrawn. In case the plaintiff/petitioner claimed that in the suit so filed by him there was a defect which was formal in nature, the same essentially in turn had to be a defect of form prescribed by the rules like mis-joinder of parties, of causes of action, non payment of proper court fee, failure to disclose cause of action etc. But in no event, could the plaintiff under the garb of this application be permitted to fill up the lacuna in this case and thereby prolonged the agony of the defendants. It was also held that lapses on the part of the plaintiff to fully describe the suit property could not be a ground to permit the petitioner to file a fresh suit.

I have heard learned counsel for the parties and have also gone through the records carefully.

Mr. Nimish Gupta, learned counsel for the petitioner has strenuously argued that the learned Court below had erred in holding that the provisions of Order 23 Rule 1 CPC were not attracted to the case and such approach on the part of the learned Court below is hyper technical as it had been proved on record that the plaintiff for some reason beyond his control had not been in a position to establish the identity of the property. On the other hand, Mr. Ashok K. Tyagi, learned counsel for the respondents has vehemently argued that no fault can be found with the order passed by the learned Courts below and the same was in consonance with law.

At the outset, it may be observed that the Court has no power apart from Rule 1 of Order 23 to allow a suit to be withdrawn with liberty to file a fresh one and this power has to be exercised subject to the conditions prescribed therein. The Order 23 Rule 1 reads as follows:

"1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or such other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(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) Where the plaintiff -

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs."

A perusal of sub rule (3) of Rule 1 Order 23 of Code of Civil Procedure makes it abundantly clear that no litigant can be allowed to file suits one after the other for the same cause of action, which is not only to cause harassment to the party against whom it is filed, but it has also the unnecessary impact on the public exchequer and unnecessary load on the court-time. The object of sub rule (3) is that there may be certain technical factors on account of which a suit may fail though the plaintiff may have a good case on merits and, therefore, this may result in failure of justice and in such cases the Court normally would give permission to withdraw the suit with a liberty to file a fresh one. However, such permission can be granted only if the conditions set out therein are satisfied. The formal defect as contemplated under this provision, may include many kind of defect and the same were essentially are those which do not affect the merits of the case. The defect so contemplated, in particular deal with the form prescribed by rules of procedure, mis-joinder of parties, cause of action etc. The defect as is sought to be pointed out by the petitioner by no stretch of imagination can be said to be a formal defect.

Having lost before the learned trial Court, the petitioner under the garb of this application, cannot be permitted to wriggle out of the decree passed against him. The order passed by the learned Court below is a legal one and there is no material irregularity or illegality in the same. The provision of Order 23 Rule 1 alongwith its sub rules have been legally and correctly construed by the learned Court below calling for no interference by this Court.

Accordingly, the revision petition is dismissed, leaving the parties to bear their own costs. Interim order dated 20.8.2014 passed in CMP No. 12659 of 2014 is vacated.