Sali vs Santu etc.

Chet Ram Thakur, J.—This revision petition is directed against the order, dated 10-7-1972, passed by the Sub-Judge I Class, Kangra, whereby he permitted the Plaintiff-Respondent to withdraw his suit with permission to file a fresh suit on the same cause of action.

The Plaintiff had filed a suit against the Defendant for declaration that he was the owner of the suit land and that the Arjan tree also stood within his land and that the Defendants be restrained from interfering with his possession on the land and on the tree. The Defendants opposed the suit. During the pendency of the suit, with the agreement of the parties, the Court appointed Shri K.C. Kaundal Tehsildar Kangra as a Local Commissioner to measure the land and to find out on which Khasra number the Arjan tree stood. The Local Commissioner reported that the tree was not on the land of the Plaintiff but it stood in the Shamilat Tikka land. On this the Plaintiff filed his objections against the report of the Commissioner. Several opportunities for evidence were granted to the Plaintiff-objector but it appears that he did not adduce any evidence. It appears that on 10-7-1972 when the witnesses were not present the Court passed the following order:

Ws are not present. Process-fee and diet money also not paid. Counsel for Plaintiff wants to withdraw this case with permission to file fresh suit on the same cause of action. As requested this suit is dismissed as withdrawn with liberty to file fresh suit on the same cause of action.

Announced.

Sd/- Sub-Judge, First Class, Kangra.

Learned Counsel for the Petitioner has assailed this order on the ground that the Plaintiff-Respondent had failed to bring his case within the ambit of Order 23, Civil Procedure Code, and that the learned trial Judge has illegally exercised the jurisdiction vested in him by law in granting the permission and in passing the impugned order. There was no formal defect by virtue of which the suit could be permitted to be withdrawn.

Learned Counsel for the Respondent has taken two preliminary objections. Firstly, that the revision was filed after the expiry of limitation and secondly, that it was not a fit case for interference in the exercise of the revisional power of the High Court.

I have heard the learned Counsel for the parties. The order was passed on 10-7-1972. It appears from the application u/s 5 of the Limitation Act filed by the Petitioner that after the pronouncement of the judgment he had applied for the copies and when the copies were obtained it was found that instead of objectors'' witnesses, the learned Sub-Judge had mentioned D.Ws. in the order and so an application was moved for correction and that application was accepted on 24-1-1973. Shortly after the Petitioner applied for the certified copy of the order which was delivered to him on 29-8-1973. The Copying Agency had wrongly written the date about the moving of the application as 8-5-1973 for obtaining the copy. The case was admitted on 8-11-1973 subject to the objection regarding limitation. The contesting Respondent did not put in appearance despite due service of processes on him and therefore vide order, dated 19th December, 1973, the Respondents were proceeded ex parte and the delay was ordered to be condoned.

When the case was being argued by the learned Counsel for the Petitioner, Shri Ramesh Chand, Advocate, put in appearance and he prayed for a date saying that he had been engaged by the Respondents and, therefore, he was granted time and the case came up for hearing on 29-3-1973. The learned Counsel for the Respondents has not taken any steps to set aside the ex parte order, whereby the delay in filing the revision was condoned and according to him it was not necessary for him to have set aside that order and he could take this point of limitation at any stage, it being a pure question of law and reliance is placed by him on Santa Singh Gopal Singh and Others Vs. Rajinder Singh Bur Singh and Others, In this authority it was held that:

the point of limitation, though not altogether a new point, being a pure question of law could be allowed at the stage of hearing before the Full Bench. No new facts have to be proved and all that has to be seen is whether according to the pleadings of the parties and the findings which have been given and which are binding on them, the suit would be governed by Article 142.

But this authority has got no application to the facts of the present case. In this case the delay had been condoned and the Respondents had been proceeded ex parte and, therefore, it was incumbent upon the Respondents to have first got the order set aside. He cannot now be permitted to agitate this point of limitation. Hence this point fails.

The second point is that the revision petition is not competent because according to him the court has exercised the jurisdiction which vested in him and merely passing a wrong order by the Court could not be a ground for interference in the exercise of the revisional powers of the High Court. This point is not only a preliminary one but this is the very crucial point which arises in the petition. The learned Counsel for the Petitioner has also urged that the trial court has acted illegally in the exercise of its jurisdiction inasmuch as it did not apply its mind and the order was not in conformity with Order 23, Rule 1 of the CPC and, therefore, this order was liable to be set aside.

It is apparent from the record that the Plaintiff-Respondent had filed objections against the report of the Commissioner and he was granted several adjournments for the production of the evidence. He had failed to file the process-fee and diet money to secure attendance of the witnesses through the Court. On the date when this impugned order was passed the witnesses were not present and the trial Court passed this order. There is no application on the record nor is there a statement of the counsel for the Defendants to show if he had agreed to the suit being withdrawn by the Defendants with permission to file a fresh suit nor it is apparent from the order as to what is the formal defect or if there was any sufficient ground which necessitated the Plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action. According to Order 23, Rule 1 the suit can be withdrawn by the Plaintiff where the Court is satisfied that a suit must fail by reason of some formal defect, or there is any sufficient ground for allowing the Plaintiff to institute a fresh suit. The order clearly shows that the learned Sub-Judge did not apply his mind to the matter before it inasmuch as he did not mention that he was satisfied with regard to the grounds as envisaged by Order 23, Rule 1, Sub-rule (2) of the CPC with regard to the formal defect or about any other sufficient grounds entitling the Plaintiff to withdraw the suit with permission to file a fresh suit. Therefore, the Court has acted with material irregularity in the exercise of its jurisdiction and the order shall have to be set aside in this revision petition. The Plaintiff failed to produce his witnesses despite several opportunities granted in this behalf and that was the only ground on which he elected to withdraw the suit as it appears and this cannot be a sufficient ground or a formal defect for giving permission to the Plaintiff under Order 23, Rule 1, Sub-rule (2) of the Civil Procedure Code.

In similar circumstances in Fulchand Khandelwal and Others Vs. Rameshwar Lal Satnaliwala and Another, , it was held that the Court had not given any reason as to why it was permitting the Plaintiff to withdraw the suit under Sub-rule (2) of Rule 1 of Order 23 of the Code. The Court found neither any formal defect in the suit nor any sufficient cause for granting that permission. The Court had not cared to see that the cause, which was disclosed in the petition filed by the Plaintiff, was one which only showed that he was not ready with his evidence on the date when the suit was going to be taken up for hearing. That could never be a sufficient cause for giving permission to the Plaintiff to withdraw the suit with liberty to file another one on the same cause of action. The order was wholly without jurisdiction and must be set aside. In AIR 1949 10 (Nagpur) , also it had been held that:

Appellate Court allowing withdrawal of suit under Order 23, Rule 1 on ground not covered by that rule acts illegally in the exercise of jurisdiction and that the High Court will interefere in revision.

In the instant case it would have been seen that the learned Sub-Judge did not mention in the order as to what was the formal defect or the sufficient ground as contemplated under Order 23, Rule 1, Sub-rule (2) of the CPC so as to permit the Plaintiff to withdraw the case. The only thing that is apparent on the face of the record is that the Plaintiff--objector failed to produce his evidence against the report of the Commissioner and that could not be a formal defect and the Court should not have allowed permission to the Plaintiff to withdraw the suit with permission to file the suit and the only course open for the Court was to dismiss the suit.

Consequently, I find that the Court has acted with material irregularity in the exercise of its jurisdiction and the order deserves to be set aside and which I hereby do and modify the order that the suit of the Plaintiff stands dismissed with costs.