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Bai Maru D/O Muman Dosan Khanji Vs. Saiyad Latipalli Akbarali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR800
AppellantBai Maru D/O Muman Dosan Khanji
RespondentSaiyad Latipalli Akbarali
Cases ReferredAsian Assurance Co. v. Madholal
Excerpt:
.....in the suit. it may be that this contention of the defendant is well-founded or that there is no substance in this contention. if the defendants contention was correct the suit of the plaintiff would fail not by reason of any formal defect or any defect analogous to formal defect but by reason of the inability of the plaintiff to make good the title claimed by him in the plaint......of the village nandotri were necessary parties to the suit and that the non-joinder of them was a formal defect within the meaning of clause (a) or in any event constituted sufficient ground for allowing the plaintiff to institute a fresh suit in respect of the subject matter of the suit within the meaning of clause (b) of order 23 rule 1(2). mr. j.b. patel learned advocate appearing on behalf of the plaintiff contended that the non-joinder of the other co-sharers was merely a defect in the form of the plaint and was therefore a formal defect or in any event constituted a ground analogous to formal defect and that the case of the plaintiff therefore fell within the four corners of order 23 rule 1(2). mr. j.b. patel relied on a full bench decision of the bombay high court reported in.....
Judgment:

P.N. Bhagwati, J.

1. This is an application to revise an order passed by the Civil Judge (Junior Division) Sidhpur granting permission to the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1(2) of the Code of Civil Procedure. The plaintiff filed the suit against the defendant claiming to be the full and independent owner of twelve pieces of lands situate in village Nandotri on the ground that he was the inamdar of the village. According to the plaintiff the defendant was threatening to interfere with the plaintiffs possession of the lands and the plaintiff therefore claimed a declaration that he was the owner of the lands and also asked for the relief of injunction against the defendant to restrain the defendant from interfering with the plaintiffs possession of the lands. The defendant resisted the plaintiffs suit on various grounds which I need not set out here for the purpose of the present Civil Revision Application. The learned Civil Judge recorded the evidence and after the arguments of the parties were concluded the learned Civil Judge adjourned the suit to 16th Sept. 1959 for judgment. On 16th September 1959 however the plaintiff made an application to the learned Civil Judge for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1(2) of the Code of Civil Procedure on the ground that in the course of the evidence it had emerged that besides the plaintiff there were other co-sharers of the village Nandotri and that the suit was therefore likely to fail by reason of the non-joinder of the other co-sharers in the suit. It may be mentioned here that prior to the date of this application the plaintiff had already made an application to the learned Civil Judge for adding the other co-sharers as co-plaintiffs but that application had been rejected by the learned Civil Judge. The defendant resisted this application made by the plaintiff for permission to withdraw the suit under Order 23 Rule 1(2) of the Code of Civil Procedure but the learned Civil Judge took the view that there were technical defects in the pleading which might prove fatal in the long run and he therefore granted permission to the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1(2) of the Code of Civil Procedure. It is this order which is sought to be revised by the defendant in this Civil Revision Application.

2. The only ground on which the order made by the learned Civil Judge is sought to be supported is that the other co-sharers of the village Nandotri were necessary parties to the suit and that the non-joinder of them was a formal defect within the meaning of Clause (a) or in any event constituted sufficient ground for allowing the plaintiff to institute a fresh suit in respect of the subject matter of the suit within the meaning of Clause (b) of Order 23 Rule 1(2). Mr. J.B. Patel learned Advocate appearing on behalf of the plaintiff contended that the non-joinder of the other co-sharers was merely a defect in the form of the plaint and was therefore a formal defect or in any event constituted a ground analogous to formal defect and that the case of the plaintiff therefore fell within the four corners of Order 23 Rule 1(2). Mr. J.B. Patel relied on a Full Bench decision of the Bombay High Court reported in Ramrao Bhagwantrao v. Babu Appanna XLII Bombay Law Reporter 143 where the view has been taken that the grounds referred to in Clause (b) of Order 23 Rule 1(2) need not be ejusdem generis with the ground mentioned in Clause (a) namely formal defect but that they must be at least analogous to it and that the expression 4formal defect must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merits of the case whether such defect be fatal to the suit or not. The argument of Mr. J.B. Patel was that the defect in the present case arising from the non-joinder of the other co-sharers was a defect of form which did not affect the merits of the case and was therefore a formal defect within the meaning of Clause (a) or in any event constituted sufficient ground within the meaning of Clause (b) of Order 23 Rule 1(2). The argument I am afraid cannot be accepted. It is no doubt true that as laid down in the decision mentioned above the expression formal defect must be given a wide and liberal meaning but it must be a defect which is analogous to a formal defect that is to say a defect which to use the language of the Pull Bench does not affect the merits of the case. I must therefore ask myself the question whether the defect in the present case can be said to be a defect which does not affect the merits of the case but is merely a defect in form? I think the answer to the question must obviously be in the negative.

The plaintiff filed the suit claiming to be the full and independent owner of the lands. It turned out in evidence-that is what the plaintiff says-that besides the plaintiff there are other co-sharers of the village Nandotri in which the lands are situate. The defendants contention appears to be that the plaintiff is not entitled to the reliefs claimed in the suit because the plaintiff is not the sole owner of the lands but that there are other co-owners of the lands along with the plaintiff. It may be that this contention of the defendant is well-founded or that there is no substance in this contention. That will be a matter for the learned Civil Judge to decide. But looking at the matter from either point of view it is clear that permission to withdraw the suit could not be granted to the plaintiff under Order 23 Rule 1(2). If the plaintiff was entitled to the reliefs claimed in the suit notwithstanding the fact that he was not the sole owner of the lands but was only one of the co-owners the application for permission to withdraw the suit under Order 23 Rule 1(2) of the Code of Civil Procedure could obviously not be granted for it could not be said in that event that there was any formal defect which was fatal to the suit or that there was any sufficient ground for allowing the plaintiff to institute a fresh suit in respect of the subject matter of the suit. If on the other hand the plaintiff was not entitled to the reliefs claimed in the suit on the ground that he was not the sole owner of the lands but was only one of the co-owners the application for permission to withdraw the suit under Order 23 Rule 1(2) could equally not be granted for the defect could not be said to be a defect of form but was a defect which affected the merits of the case. The question whether the plaintiff was entitled to the reliefs claimed in the suit having regard to the fact that be was not the sole owner of the lands but was merely one of the co-owners was a question which affected the merits of the case. The defence of the defendant that the plaintiff should not be given any of the reliefs claimed by him because he had no title to claim those reliefs was a defect affecting the merits of the case and could not possibly be said to be a defence based on any formal defect in the case of the plaintiff or on any defect analogous to formal defect. If the defendants contention was correct the suit of the plaintiff would fail not by reason of any formal defect or any defect analogous to formal defect but by reason of the inability of the plaintiff to make good the title claimed by him in the plaint. I do not see how under these circumstances permission could be granted to the plaintiff to withdraw the suit under Order 23 Rule 1(2). I find that the same view has been taken by a Division Bench of the Bombay High Court in a decision reported in Asian Assurance Co. v. Madholal : AIR1950Bom378 In that case also the only defect on which the plaintiffs relied in support of their application for permission to withdraw the suit under Order 23 Rule 1(2) was that two parties who should have been made parties to the suit were not so made and therefore the suit suffered from the defect of non-joinder of necessary parties. Dealing with this ground Chagla C.J as he then was observed;

Surely in our opinion that is not a formal defect contemplated by Order 23 Rule 1(2).

It is therefore clear that no ground existed which entitled the plaintiff to obtain permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject matter under Order 23 Rule 1(2) and that the learned Civil Judge acted illegally or with material irregularity in granting such permission.

3. In the result I allow the Revision Application and set aside the order passed by the learned Civil Judge granting permission to the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1(2) of the Code of Civil Procedure. The plaintiff will pay the costs of the Revision Application to the defendant.


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