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Kailash Chandra SwaIn Vs. Bhaskar Behera and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 717 of 1982
Judge
Reported in60(1985)CLT555; 1985(II)OLR576
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(3)
AppellantKailash Chandra Swain
RespondentBhaskar Behera and ors.
Appellant AdvocateB. Ray, G.C. Patnaik and S.B. Choudhury
Respondent AdvocateS.P. Mishra, Adv.
DispositionPetition allowed
Cases Referred(Atul Krushna Ray v. Rajkishore Mohanty
Excerpt:
.....is likely to fail for such formal defects the plaintiff sought for leave of the court to file a fresh suit on the same cause of action. sub-rule (3) thereof reads as follows :where the court is satisfied,-(a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds far 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'.from the language of the provision it is apparent that 'the court white considering an application for withdrawal of suit with liberty to file a..........23, rule 1(3), civil procedure code, for permission to withdraw the suit with liberty to file a fresh suit, is sought to be impeached in this revision petition.2. the petitioner, kailash chandra swain, filed o. s. no. 54 of 1980-i against the opposite parties praying for a decree for perpetual injunction restraining the defendants not to interfere with possession of the plaintiff without due process of law and for a decree for rs. 600/- against the defendants towards damages. the suit land was described as an area of ac. 0.45 decimals in plot no. 706/1136 under khata no. 256 of village chandol. as per the description given in the plaint all the defendants are residents of village chandol.during the pendency of the suit, an application under order 23, rule 1(3), c. p. c., was filed by.....
Judgment:

D.P. Mohapatra, J.

1. The order of the Munsif, Bhubaneswar, refecting the petitioner's application under Order 23, Rule 1(3), Civil Procedure Code, for permission to withdraw the suit with liberty to file a fresh suit, is sought to be impeached in this revision petition.

2. The petitioner, Kailash Chandra Swain, filed O. S. No. 54 of 1980-I against the opposite parties praying for a decree for perpetual injunction restraining the defendants not to interfere with possession of the plaintiff without due process of law and for a decree for Rs. 600/- against the defendants towards damages. The suit land was described as an area of Ac. 0.45 decimals in Plot No. 706/1136 under khata No. 256 of village Chandol. As per the description given in the plaint all the defendants are residents of village Chandol.

During the pendency of the suit, an application under Order 23, Rule 1(3), C. P. C., was filed by the plaintiff mainly on the ground that some of the villagers of the suit village including the present defendants raised a claim of communal right of user with regard to the suit land and claimed to have raised a temple on a portion thereof and the rest of the suit land being used as 'Melan Padia'. In such circumstances, according to the plaintiff, it would be appropriate to file a suit under Order 1, Rule 8 C. P. C. The other grounds stated in the application are that in the recent Settlement Record-of-Rights the suit property has been recorded in the Anabadi Khata with a note of user by the villagers of Chandol and hence it is necessary to seek the relief for correction of the Record-of-Rights, In that case, the State of Orissa would have to be impleaded as a party. Since the suit is likely to fail for such formal defects the plaintiff sought for leave of the Court to file a fresh suit on the same cause of action.

In the objection filed be the defendants, the only ground stated was that the application having been filed at a belated stage it should not be entertained. The defendants-opposite parties pleaded that they brought it to the notice of the plaintiff-petitioner in their objection to the petition for injunction that the suit property was being used by the villagers for communal purposes and that it has been so recorded by the Settlement authorities and other Revenue authorities. In spite of the knowledge of this fact, the plaintiff neither took any steps in the matter nor filed application under Order 23, Rule (1) at an earlier stage. When evidence has been led by both the parties an 1 the suit is about to be disposed of, the application by the plaintiff should not be granted.

3. The trial Court on consideration of the matter, as noticed earlier, rejected the application. Hence, this revision petition.

4. The sole ground on which the learned Munsif refused to accord leave to the plaintiff-petitioner is that the application was filed at a belated stage. The learned counsel for the petitioner contends that the reasons given by the Court below for rejecting the application cannot stand scrutiny in view of the provisions of the Code. He further contends that the order of rejection has been passed without due consideration of the relevant criteria and without due application of mind.

5. Order 23, Rule 1(1) C. P. C., provides for withdrawal of suit or abandonment of part of claim. Sub-rule (3) thereof reads as follows :

'Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds far 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'.

From the language of the provision it is apparent that 'the Court white considering an application for withdrawal of suit with liberty to file a fresh suit must apply its mind to two aspects, i.e., whether suit must fail by reason of some formal defect, and whether there are sufficient grounds for allowing- the plaintiff to institute a fresh suit for the subject-matter of the suit. The question as to whether 'other sufficient grounds' mentioned under Clause (b) of Sub-rule (3), Order 23, Rule (1) C. P. C., is to be read ejusdem generis with 'formal defects' in Clause (a) of Sub-rule (3) has been the subject-matter of consideration in several decisions by different Courts. This Court in the case of (Braja Mohan Sabato v. Sarojini Panigrahi and Anr.), A. I. R. 1975 Orissa 39, held that the expression 'other sufficient grounds'' occuring in Clause (b) of Order 23, Rule 1(2), C. P. C., is not-necessarily restricted to defects of a formal character, but is wide enough to embrace other defects as well. The Court relied on an earlier decision reported in A. I. R., 1956, Ori. 77 (Atul Krushna Ray v. Rajkishore Mohanty) in support of the view.

6. Therefore, the matter relevant for consideration is whether the requirements of Order 23, Rule 1(3), C. P. C. are satisfied in this case. But unfortunately the learned Munsif has not applied his mind to this : aspect at all. As discussed earlier, the learned Munsif has been impressed by the delay in filing of the application which in the facts and circumstances of the case is not relevant. Delay is relevant for considering the question whether allowing the prayer of the plaintiff will result in defeating a right which has already been vested in the defendants. In this case the admitted position is that the suit had not been finally disposed of, when the application was filed and, therefore, the question of disturbing any right vested in the defendants did not arise. Whether the grounds stated in the application filed by the petitioner sufficiently make out a case for grant of permission under Order 23, Rule 1(3), C. P. C. would depend on the pleadings and whether the defects pointed out in the application come within the ambit of 'formal defects' and if not whether there are 'other sufficient grounds' for granting the prayer of the plaintiff. These relevant matters have not been taken into consideration by the trial Court.

7. In these circumstances, in my opinion it would be appropriate to remit the matter to the trial Court with a direction to consider the application filed by the petitioner and the objection, filed by the opposite parties and dispose it of afresh according to law.

The civil revision is therefore allowed, the impugned order is set aside and it is directed that before taking any further step in the suit the trial Court shall dispose of the application under Order 23, Rule 1(3), C. P. C., filed by the petitioner after giving the parties an opportunity of being heard. There will be no order for costs.


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