Sopan Kamaji Gawali vs Gayabai

R.V. Ghuge, J.—Heard the learned Advocates for the respective sides at length. This petition was admitted by order dated 04/08/2009. The issue is as regards permission having been granted by the Trial Court under Order XXIII Rule 1(3) of the CPC, 1908, by passing the impugned order below Exh.28 in RCS No.311/2008. The respondent / original plaintiff was allowed to withdraw the suit with liberty to file a fresh suit on the same cause of action.

RCS No.311/2008 was filed for partition, separate possession and declaration. The petitioner/defendant is the husband of respondent / original plaintiff. Notice was issued in the matter and the petitioner appeared pursuant to the same. Before the petitioner defendant could file his written statement in the matter, the respondent preferred an application below Exh.28 stating therein that her previous Advocate had not filed certain documents and had also failed to set out certain averments in relation to the said documents in the plaint. It was also contended that the documents pertain to a Sale Deed by which the petitioner / defendant had created third party interest causing serious prejudice to the plaintiff.

As such, it was canvassed that the plaintiff would first have to bring the documents on record, would have to challenge the Sale Deed and would have to pray for a declaration that the said Sale Deed was not binding upon the plaintiff. It is in these circumstances that the said application was filed for invoking Order 23 Rule 1(3) of the CPC. According to the plaintiff, these were certain defects which needed to be cured. The plaintiff also canvassed that the sale of the suit property came to her knowledge after institution of the suit.

The petitioner herein had opposed the said application by filing its reply on 25/07/2008. It was specifically canvassed that instead of withdrawing the suit, the plaintiff could produce the documents which have been left out and could have impleaded the third party namely Shaikh Asif Shaikh Yusuf by invoking Order 1 Rule 10 of The C.P.C. The petitioner further averred that the relief of declaration pursuant to the said aspects could be sought by amendment and the suit did not suffer from any formal defect.

By the impugned order dated 07/08/2008, the Trial Court, after hearing the litigating parties, concluded that exercise of power under Order 23 Rule 1(3) was discretionary and the same had to be exercised with due caution and circumspection. The stage in the suit was for the defendant to file his written statement. The Trial Court considered the aspect that the defendant had yet not exposed its side of the story. The Trial Court also appreciated that addition of certain paragraphs to the extent of a cause of action in relation to the defendant having sold the property to Shaikh Asif by a particular sale deed and had created a third party interest, was the formal defect. The Trial Court, therefore, allowed the application by the impugned order.

By an order dated 15/09/2008, this Court, while issuing notice, had stayed the impugned order and as a consequence, RCS No.311/2008 is still pending.

I have heard the learned Advocates for the respective sides and I have gone through the petition paper book with their assistance. The issue is as regards a formal defect. Needless to state, whether a formal defect exists or not, depends on the subjective assessment and appreciation of the material on record. While seeking withdrawal of the suit, these aspects are to be considered by the Trial Court.

Order XXIII Rule 1(3) of The C.P.C., 1908, reads as under :-

"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 fir, 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."

From the reply filed by the petitioner, it appears that the petitioner practically does not have any objection to the curing of the defects which the plaintiff had pointed out. The petitioner is agreeable even to an amendment being carried out by the plaintiff and adding a party in pursuance to the placing relevant documents on record. This clearly indicates that the petitioner, who was yet to file its written statement, was not opposing the factors on which application Exh.28 was filed for seeking withdrawal of the suit.

This Court has dealt with a similar issue in the case of Rajaram Raut Vs. Baliram Raut, . In the said judgment, the Court has considered the aspect of seeking withdrawal of the suit under Order 23 Rule 1 of the C.P.C. by concluding that unless there is a formal defect, which is fatal to the suit, a party should not be allowed to withdraw the said suit. However, in the said case, the Court had noted that the defects were merely formal in nature and the opponents had already filed their written statement and had disclosed their defence. This Court also appreciated that on account of disclosing its entire defence, prejudice would be caused to the defendant if the plaintiff was allowed to withdraw the suit since in the subsequent suit to be filed, there is every likelihood that the plaintiff would attempt to counter and nullify the defence exposed by the defendant.

In the instant case, the plaintiff and the petitioner / defendant stand on an altogether different footing. The sale of the property by executing a sale deed was sought to be challenged as a specific cause of action. Documents pursuant to such a sale were sought to be placed on record. The cause of action, that was sought to be introduced, was to the extent of declaring the sale illegal as well as not binding on the plaintiff. The suit filed was merely for partition and separate possession. Taking these aspects into consideration, the Trial Court concluded that the plaintiff be allowed to withdraw the suit and file a fresh suit on the same cause of action and also for adding the subsequent purchaser by the name Shaikh Asif Shaikh Yusuf Bagwan.

In my view, the Trial Court had exercised its discretion. The petitioner had not yet filed his written statement and had thereby not exposed even an iota of his case/defence. The cause of action in the suit is restricted to partition and separate possession. By seeking to challenge the Sale Deed, by which the petitioner/defendant had sold the property and consequentially seeking declaration that the sale deed was illegal and not binding on the plaintiff, in my view, has been rightly appreciated by the Trial Court. It could therefore be said to be a formal defect.

Merely because a second view is possible, would not mean that the impugned order is perverse or erroneous as has been laid down by the apex Court (5 Judges Bench) in the Case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, and in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, .

In the light of the above, I do not find that the impugned order deserves to be termed as perverse, erroneous or is likely to cause serious injustice to the petitioner.

The petition is, therefore, devoid of merits and is, hence dismissed. Rule is discharged with no order as to costs.