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Duryodhan Jena Vs. Satyabadi Samal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 362 of 1984
Judge
Reported inAIR1986Ori58
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(3)
AppellantDuryodhan Jena
RespondentSatyabadi Samal and ors.
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateB.B. Rath and ;Manoj Misra, Advs.
DispositionPetition dismissed
Cases ReferredLingaraj Mohaprabhu Bije. Bhubaneswar v. Smt. Arnapurana Dei
Excerpt:
.....formal defects, 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. the words are wide enough to embrace other defects as well. there is no justification for importing into the language of order 23, rule 1(2)(b) the construction put upon the expression 'for other sufficient reasons' in order 41, rule 1.'(quoted from the head-note) in the said ease, it has been held that the failure of the plaintiff's counsel to incorporate a prayer for dissolution of the..........named as 'pratibha talkies'. the defendant 1 claimed to have acquired prescriptive title over the suit cinema hall. he further claimed to have obtained necessary licence for exhibition of cinema from time to time in his name after satisfying the concerned authority that he was the sole proprietor of the cinema theatre. on these averments, the defendant 1 staled that the plaintiff had no right, title and possession over the suit property and hence, he was not entitled to the relief of injunction.3. subsequently, the plaintiff filed a petition under order 23, rule 1(3), c.p.c. praying for permission to withdraw the suit with liberty to institute a fresh suit. in the said petition he averred, inter alia, that m/s. pratibha talkies is a pertnership concern; to start the cinema show the.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The defendant 1 in T. S. No. 40/83 filed before the Subordinate Judge, Parlakhemundi, is the petitioner in this application under Section 115 of Civil P. C. seeking to challenge the order of the Court accepting the application of the plaintiff under Order 23, Rule 1(3)(b), C.P.C. for permission to withdraw the suit with liberty to file a fresh suit, Satyabadi Samal, opposite party 1 in this application, filed the suit impleading the petitioner, Duryodhan Jena and the opposite parties 2 to 9 as defendants therein. The relief sought in the plaint was for permanent injunction restraining the defendant 1 not to interfere with his right, title, interest and possession over the suit property. The gist of the averments in the plaint was to the effect that the plaintiff was the owner of the land comprised in Khata No. 340, Plot No. 733, situated in mouza Gurandi, being his ancestral property. The plaintiff was in possession of the said land and was paying kist for the same before and after the abolition of the Parlakhemundi Estate. The plaintiff and defendant 1 are close relations of each other, the former being brother-in-law (Sala) of the latter and the plaintiff's daughter having been given in marriage to the son of defendant 1. The other defendants were close to these parties and they contributed funds towards share capitals for establishment of a cinema house in Gurandi village on the suit land. The theatre runs under the name of 'Pratibha Talkies, Gurandi'. It was decided that the plaintiff would be managing partner of the cinema. After the building was completed and necessary machineries installed therein, the then Collector and District Magistrate, Ganjam inaugurated the cinema on 17-8-1956. On 1-9-1959 an agreement was executed by defendant 1 that the defendant 4, A. Appa Rao and the plaintiff would run the cinema for 3 years and would pay Rs. 6,000/- per annum to the shareholders mentioned above. Since the defendant 1 was taking active interest in construction of the building of the cinema and he was the only person amongst the partners who was educated and well conversant with English Language, he became the manager of the cinema. According to the plaintiff, since he was the owner of the land on which the cinema building was constructed and contributed funds for purchase of furniture for the theatre, he was enjoying absolute rights over the said theatre and the other shareholders were getting their share of profit. It was further averred in the plaint that A. Appa Rao, Bendi Sitamboro Rao and Poornochandrao Patro died. Appa Rao's share was purchased by defendant 6, and he became the partner. Defendant 7, the widow of Bendi Sitamboro, became the partner after the death of her husband. Similarly, defendant 9, the widow of Poornochandra Rao, became the partner after the death of her husband. In spite of demand of the partners for accounts and for distribution of profit, defendant 1 did not render accounts. He surreptitiously look away the records and kept them concealed somewhere. The plaintiff further averred that he, as managing partner, remodelled the building of Pratibha Talkies. The licence issued for running the cinema expired on 31-10-1983, In spite of there being no licence, defendant 1 who had no right, title, interest or possession over the property began to forcibly operate the cinema and was making illegal collections. Though the plaintiff had forbidden defendant 1 not to exhibit films he paid no heed to it. On these averments the plaintiff sought for permanent injunction in terms already indicated above.

2. Defendant 1, Duryodhan Jena (petitioner in this proceeding), alone filed a written statement- Therein he denied most of the averments made in the plaint. He asserted that the plaintiff was neither the owner of the suit property nor was he in possession thereof. He further stated that the plaintiff had not constructed the suit house as alleged by him. Indeed, the suit site belonged to the defendant as the rightful owner of the land. He constructed the Cinema Hall to the knowledge of the plaintiff and all concerned. He denied that the plaintiff and other defendants had any interest in the suit property, the suit house and the machinery in the cinema. In para 5 of the written statement the defendant expressly stated that the allegation of formation of a partnership is false. There was never any partnership either registered or unregistered or otherwise. There were merely some proposals and the same were never accepted or acted upon. There was never any existence of instrument of partnership. According to the defendant 1, since 1956 he had been the sole and exclusive owner of the suit property and of the cinema hall, M/s. Pratibha Talkies, as its sole proprietor. It was the further case of the said defendant 1 that Gobinda Samal, the father-in-law of defendant 1, the father of the plaintiff gifted 50 cents of land towards 'Haladi-Sindur' to her daughter at the lime of Kanyadana as per caste custom. Gobinda Samal materialised the solemn gift by endorsing his consent during the time of enquiry by the Revenue Authority in approving the selected site to construct the temporary cinema hall between 1955-56, later named as 'Pratibha Talkies'. The defendant 1 claimed to have acquired prescriptive title over the suit cinema hall. He further claimed to have obtained necessary licence for exhibition of cinema from time to time in his name after satisfying the concerned authority that he was the sole proprietor of the cinema theatre. On these averments, the defendant 1 staled that the plaintiff had no right, title and possession over the suit property and hence, he was not entitled to the relief of injunction.

3. Subsequently, the plaintiff filed a petition under Order 23, Rule 1(3), C.P.C. praying for permission to withdraw the suit with liberty to institute a fresh suit. In the said petition he averred, inter alia, that M/s. Pratibha Talkies is a pertnership concern; to start the cinema show the plaintiff and the defendants 1 to 9 had contributed their share capitals; while the plaintiff was managing the partnership, the defendant 1 was the manager of the concern. He further averred that defendant 1 in his written statement had denied the existence of partnership and claimed exclusive ownership of the cinema. In these circumstances, the plaintiff felt that it was desirable to pray for dissolution of the partnership firm, ask for accounts to defendant 1 and to injunct the District Magistrate, Ganjam from issuing the licence in the name of defendant 1, who it appears had been obtaining licence for running the cinema in his own name by practising fraud. According to the plaintiff, since the present suit was one for injunction only and the District Magistrate, Ganjam was not a party in the suit, he had been advised to file a comprehensive suit to get reliefs relating to the subject matter of the dispute. Unless permission to withdraw the suit with liberty to file a fresh suit was granted, plaintiff would suffer irreparably as he would not be able to get effective relief in the suit.

4. The defendant 1 in his objection to the petition under Order 23, Rule 1(3) of the C.P.C. staled, inter alia, that the plaintiff did not frame the suit on the basis that M/s. Pratibha Talkies was a partnership concern. Indeed, there was no deed of partnership registered or unregistered evidencing the fact. Failure on the part of the plaintiff to implead the District Magistrate, Ganjam, was not a ground to permit him to withdraw the suit with liberty to file a fresh one, since non- joinder of necessary party docs not amount lo a 'formal defect'. According to the defendant 1, since the suit was bound to fail, due to substantial and material defect, resort to Order 23. Rule 1. C.P.C. to circumvent it was not permissible. The plaintiff had to suffer for his own fault. The other averments in the objection were substantially reiteration of his stand in the written statement.

5. The Court below on hearing the learned counsel for both the parties and on consideration of the averment in the petition under Order 23, Rule 1(3), C.P.C. and objection to the said petition, allowed the application and accorded permission to the plaintiff to withdraw the suit with liberty to file a fresh suit.

6. The learned counsel for the petitioner has questioned the correctness of the impugned order mainly on the ground that the averments in the petition under Order 23, Rule 1(3), C.P.C. do not make out a case for accord of permission to withdraw the suit with liberty to file afresh suit. He contends that the substance of averments made in the petition filed by the plaintiff is to the effect that he has omitted to seek some reliefs which he now thinks should be sought and he has failed to implead the District Magistrate, Ganjam, who is a necessary party to the suit for getting effective reliefs. Even if these averments are accepted, the plaintiff is not entitled to take recourse to Order 23, Rule 1(3), C.P.C. to circumvent the defects in the suit which according to the learned counsel are not of formal nature, but, are substantial and material ones.

The learned counsel for the plaintiff-opposite party on the other hand, while supporting the order, submits that the question of accord of permission to withdraw a suit with liberty to file a fresh suit is discretionary one and in the facts and circumstances of this case, there is no reason to interfere with proper exercise of discretion by the Court below.

7. Before proceeding to consider the submissions of the learned counsel for both the parties on merit, it would be helpful to quote the provision of Order 23, Rule 1(3), C.P.C., which runs as hcreunder :

'x x x x x x x x x x

(3) Where the Court is satisfied-(a) That a suit must fail by reason of some formal defects, 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.

x x x x x x x x x X'

It is agreed by the learned counsel for both the parties that the present case is not one which comes under Order 23, Rule 1(3)(a), C.P.C. Hence, the question that arises for consideration is whether 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. The interpretation of the words 'sufficient grounds' has been the subject-matter of several decisions by different High Courts. There has been considerable controversy as to whether these words should be interpreted ejusdem generis. So far as this Court is concerned, the view that has been consistently taken is that there is no justification for restricting the meaning of the expression 'other sufficient grounds' only to formal defects and those analogous thereto.

In the case of Atul Krushna Roy v. Raukishore Mohanty, AIR 1956 Orissa 77, it is held:

'There is no justification for restricting the meaning of the expression 'other sufficient grounds' in Order 23, Rule 1(2)(b) only to formal defects or those analogous thereto. The words are wide enough to embrace other defects as well. There is no justification for importing into the language of Order 23, Rule 1(2)(b) the construction put upon the expression 'for other sufficient reasons' in Order 41, Rule 1.' (quoted from the head-note)

In the said ease, it has been held that the failure of the plaintiff's counsel to incorporate a prayer for dissolution of the partnership in a suit for accounts is bound to result in the dismissal of the suit. This is certainly a defect and provides a sufficient ground for permitting the plaintiff to come to Court again with a properly drafted plaint. The Court did not follow the decision in AIR 1951 All 845 (FB) (Abdul Ghafoor v. Abdul Rahman) and AIR 1940 Bom 121 (FB) (Ramrao Bhagwant Rao Inamdar v. Babu Appanna Samage), and distinguished an earlier decision of this Court in the case of Babrak Khan v. A. Shakoor Muhammad, (1954) 20 Cut LT 643.

This view has been followed in a subsequent decision of this Court in the ease of Brajamohan Sabato v. Sarojini Panigrahi, AIR 1975 Orissa 39 wherein S. K. Ray, J. (As he then was) followed the decision in the case of Atul Krushna Roy, IA1R 1956 Orissa 77). It was held therein that the mistake committed by the plaintiff in not seeking the appropriate relief in the suit was 'sufficient grounds' for granting permission to withdraw with liberty to file a fresh suit. The Court followed the decision in the case of Atul Krushna Roy and did not follow the decision of Bombay High Court in AIR 1956 Bom 632, Tarachand Bapuchand v. Gaibihaji Ahmed Begwan and AIR 1966 Mad 346 : (1966) 1 Mad LJ 359, E. Nadipatha v. P. Venkataraju.

In the case of Lingaraj Mohaprabhu Bije. Bhubaneswar v. Smt. Arnapurana Dei, (1972) 1 Cut WR 643, the same learned Judge took the view that a formal defect is a defect of form which is prescribed by rules of procedure. There is no justification for restricting the meaning of the expression 'other sufficient grounds' formal defect or those analogous thereto. The words are wide enough to embrace only to other defects as well. The expression 'sufficient grounds' is not to be construed ejusdem generis but must embrace the grounds, which is a judicial mind, can consider to be sufficient for the purpose of granting leave prayed for under this rule.

From the decision referred to above, it is clear that the term 'on other grounds' has been given a wide connotation and attempt to give a restrictive meaning to it has been repelled. The matter has been left to a judicial discretion of the Court to consider whether the ground stated by the plaintiff should be accepted as sufficient to permit him to file a fresh suit after removing the defects in the suit pending before the Court.

8. In the present case, from the pleadings, it is clear that the plaintiff asserted existence of a partnership constituting himself and defendants. He further claimed that the partners contributed funds for establishing the cinema house on the suit land and they were entitled to share in the profits therefrom. The defendant 1 on the other hand, denied the existence of partnership. The repeated assertion of the defendants to this effect in the written statement completely belies his contention that the plaintiff did not frame the suit on the basis that the property belonged to a partnership firm. It is pertinent to mention here that at the stage of considering the application under Order 23, Rule 1(3), C.P.C. the Court is not concerned with the merits of the stand which the plaintiff proposes to take in the future'suit. That would be a matter for consideration of the Court as and when the proposed suit is filed. The defendant therein would be at liberty to take all possible defence available to him under law. It is further clear from the pleadings of the parties that the matter relating to grant of cinematography licence to defendant 1 for running the cinema hall and exhibition of films therein is a major point of controversy between the parties. If the plaintiff is to get any effective relief by restraining the defendant 1 from running the cinema the matter relating to grant of licence in favour of latter, would have to be adjudicated upon by the Court. For such adjudication, the presence of the licencing authority, the District Magistrate, Ganjam, in the suit is necessary. In these circumstances, it cannot be said that the grounds stated by the plaintiff in the petition under Order 23, Rule 1(3), C.P.C. are wholly irrelevant for judging the matter of grant of permission to file a fresh suit. The defect in framing the suit and in seeking the apporpriate reliefs therein is apparent. As such, the Court below has rightly held that the grounds are sufficient to enable him to exercise his judicial discretion under Order 23, Rule 1(3), C.P.C. The exercise of discretion by the Court below having been made on a proper appreciation of the case it is not available to be interfered with in exercise of revisional jurisdiction of this Court.

9. Accordingly, the revision petition is devoid of merit and the same is dismissed. Both parties would bear their respective costs of this proceeding.


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