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Bawa Karam Chand Vs. Suresh Khurana and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 59D of 1966
Judge
Reported in4(1968)DLT45
ActsCode of Civil Procedure (CPC), 1908 - Order 23, Rule 1(2)
AppellantBawa Karam Chand
RespondentSuresh Khurana and ors.
Advocates: A.N. Aggarwal,; R.L. Tandon and; S.L. Bhatia, Advs
Excerpt:
.....permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit, or such part of a claim. the fest requirement is that the court must be satisfied that a suit must fail by reason of some formal defect. that satisfaction can necessarily be arrived at only if the court applies its mind to the particular formal defect because of which the suit is bound to fail. the statement of the plaintiff's counsel and the order of the learned sub-judge do nto disclose what that formal defect was and there is absolutely ntohing to show that the learned sub judge applied his mind to the question in this behalf secondly, according to the requirements of the statute, it is when the suit must fail by reason of some..........statement of the plaintiff's counsel, this suit is allowed to be withdrawn with liberty to bring fresh suit as it is likely to tail en foiinal defects on payment of rs.30.00 as costs conditional.'the statement that is referred to in this order is equally laconic and vague and is as follows : - 'thesuit is likely to fail on formal defects. it may be allowed to be withdrawn with liberty to bring fresh suit.'on the face of it, the order of the learned sub-judge is nto in conformity with therequirereentsiof . the stat,ut9ry proyisions. under order 23, rule 1(2)(i) of the code of civil procedure, where the court is satisfied that a suit must fail by reason of some formal defect, it may on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such.....
Judgment:

M.M. Ismail, J.

(1) This is an application to revise an order of a learned Sub-Judge, 1st Class, Delhi deted 29th Septembet, 1966 purporting to have been made Order 23 Rule 1(2), Civil Procedure Code. The order is a very laconic one and it is as follows :-

'THElearned counsel for defendant prays, for heavy costs to be awarded to him. As per the statement of the plaintiff's counsel, this suit is allowed to be withdrawn with liberty to bring fresh suit as it is likely to tail en foiinal defects on payment of Rs.30.00 as costs conditional.'

The statement that is referred to in this order is equally laconic and vague and is as follows : -

'THEsuit is likely to fail on formal defects. It may be allowed to be withdrawn with liberty to bring fresh suit.'

On the face of it, the order of the learned Sub-Judge is nto in conformity with therequirereentsiof . the stat,ut9ry proyisions. Under Order 23, Rule 1(2)(i) of the Code of Civil Procedure, where the court is satisfied that a suit must fail by reason of some formal defect, it may on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit, or such Part of a claim. The fest requirement is that the court must be satisfied that a suit must fail by reason of some formal defect. That satisfaction can necessarily be arrived at only if the Court applies its mind to the particular formal defect because of which the suit is bound to fail. The statement of the plaintiff's counsel and the order of the learned Sub-Judge do nto disclose what that formal defect was and there is absolutely ntohing to show that the learned Sub Judge applied his mind to the question in this behalf Secondly, according to the requirements of the statute, it is when the suit must fail by reason of some formal defect, the court gets the authority to permit the plaintiff to withdraw the suit with liberty to institute a fresh suit. Here, even this laconic, order of the learned Sub-Judge does nto state that the Court was satisfied that the suit must fail by reason of some formal defect and all that the order does is that it refers to the statement of the plaintiff's counsel and the reason given is that the suit was likely to fail on formal defect. Thus, the order in question nto being in conformity with the statutory requirements must be set aside.

(2) The learned counsel for the respondent submitted that the order in question was more or less a consent order. Though this submission is nto ttoally devoid of significance in view of the terms in which the order has been passed and the way in which the opening sentence of the order has been ouched it is difficult for me to decide this question in this case, in view of the fact that this was contradicted by the learned cousel for the petitioner with reference to a letter written by the cousel for the petitioner who appeared in the case before the lower court.

(3) Taking all these circumstances into account, I set aside the order dated 29th September, 1966 of the learned Sub-Judge and direct him to reconsider this matter and pass a fresh order as to whether the respondent herein should be permitted to withdraw the suit with liberty to file a fresh suit or nto.

(4) It is further brought to my ntoice that pursuant to the order in question, the respondent herein has filed the fresh suit and the same is pending and further proceedings in the same have been stayed because of the pendency of this Civil Revision Petition. I direct that the stay of further proceedings in that fresh suit may be continued till the learned Sub-Judge decides afresh the question which I am now directing him to decide afresh.

(5) The parties will appear before the lower court on 20th September, 1967. The Civil Revision Petition is allowed as indicated above. There will be no order as to costs in this case.


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