Ved Parkash . vs Ramesh Chand and ors.

S.P. Goyal, J.

Respondents Nos. 1 to 13 filed this suit under Order 1, Rule 8 of the Code of Civil Procedure for a declaration that the land in dispute was owned and possessed by the Balmiki community of Panipat and in the alternative that they have acquired the title by the prescription, which was dismissed by the trial Court. In the appeal, they moved an application under Order 23, Rule I of the Code of Civil Procedure for dismissal of the suit as withdrawn with the permission to file a fresh suit on the same cause of action. The learned counsel for the opposite party did not oppose the application and the learned Additional District Judge allowed the same observing thus :

"I am satisfied that the present suit suffers from material defects which would prove fatal to the case and therefore, it is a case where requirements of Order 23, Rule 1 (3), Civil Procedure Code, are complied with. The defendantsrespondents have also no objection to the request being granted. Accordingly the suit is dismissed as withdrawn. The plaintiffs shall be at liberty to file another suit on the same cause or action but before doing so they shall pay/deposit a sum of Rs. 50/ as costs payable to the defendants".

Aggrieved thereby, Ved Parkash, one of the defendants has come up in this revision.

The learned counsel for the petitioner contended that the lower appellate Court has, acted illegally in passing the order relying on the concession of the counsel for the opposite party and without forming an independent opinion if the suit was liable to fail on any formal defect. He further contended that unless the Court discusses the formal defects alleged and expresses its opinion thereon, mere reproduction of the words of the statute would not be sufficient to show an application of the mind on the part of the Court in the forming of the opinion that the suit was liable to be dismissed for some formal defect. Reliance for this proposition was placed on an earlier decision by me in Ram Kumar v. Kartar Singh, 1987(1) P.L.R. 274 : 1987 RRR 372.

The learned counsel for the respondents, on the other hand, relied on a decision of the Allahabad High Court in Ragho Sewak Rai v. Bhola Singh, AIR 1938 All. 450, wherein it was held that the Court would be called upon to go into the question whether a formal defect or other sufficient cause exists only if the opposite party denies that there is any such defect or sufficient cause. With due respect to the learned Judge, I am unable to subscribe to this view for two reasons. First, that the provisions of order 23, Rule 1 (3), Civil Procedure Code require that the Court must be satisfied before permission is granted as to the existence of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute. So, in recording satisfaction the Court may take into a fresh suit consideration the concession of the opposite party, but cannot solely rely thereon. Second, that a concession made by a counsel on a question of law would not bind the party and the order would be open to challenge in appeal or revision, as the case may be, on that ground. I, therefore, reiterate my view that an order under Order 23, Rule 1 (3), Civil Procedure Code cannot be passed by the Court simpliciter on the concession of the opposite party.

So far as the merits of this case are concerned, the formal defects alleged were that Khasra No. 3392, which formed part of the property in dispute, was not specifically mentioned in the plaint that boundaries of the disputed portions were also not stated in the plaint and the plaint did not fulfil the requirements of Order 1, Rule 8 of the Code of Civil Procedure. A perusal of the plaint would show that only land comprised in Khasra No. 3392 was in dispute and this number was specifically entered in para No. 3 of the plaint together with its Khewat and Khatauni numbers. The land claimed being agricultural land, its boundaries were not required to be mentioned in the plaint. The first two grounds urged, therefore, were only imaginary and nonexistent. Similarly, no objection was taken by the defendants that the provision of Order 1, Rule 8 have not been complied with, nor the suit had been dismissed on this ground. Instead, the issue in this regard had been conceded by the defendants. So, the third ground urged was again wholly nonexistent. The learned Additional District Judge, thus has exceeded his jurisdiction in allowing the withdrawal of the suit with permission to file a fresh suit on the same cause of action.

This petition is, consequently, allowed with costs and the impugned order set aside. The case would now go back to the District Judge for disposal on merits and the parties have been directed through their counsel to appear in this Court on June 2, 1987.