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Jugal Kishore Vs. Ram Bux and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 97 of 1979
Judge
Reported in1985(1)WLN588
AppellantJugal Kishore
RespondentRam Bux and ors.
DispositionPetition allowed
Cases ReferredBrahmanand v. Prabhati
Excerpt:
.....by the learned additional munsif to the plaintiffs to withdraw the suit with a liberty to file a fresh suit.;revision allowed - - gaibihaji air1956bom632 that failure to make a proper claim and failure to implied parties in respect of the claim cannot be properly regarded as a formal defect, which is fatal to the suit within the meaning of o. xxiii, cpc, where a court is satisfied that the suit must fail by reason of some formal defect and 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..........which may justify permission to the petitioner to withdraw the suit with liberty to bring fresh suit.learned judge, therefore, came to the conclusion that the case was not covered by el. (2) of rule 1 of o. xxiii, cpc. i respectfully agree with the view taken in tarachand's case (1) and brehamanand's case (3). the plaintiff under o. xxiii, rule 1 cpc, can withdraw a suit as a matter of right. this, however, precludes him from suing again on the same subject-matter. according to clause (2) of rule 1 of o. xxiii, cpc, where a court is satisfied that the suit must fail by reason of some formal defect and 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.....
Judgment:

S.K. Mal Lodha, J.

1. This is a revision petition by the defendant Under Section 115, C.P.C. against the order dated December 16, 1978, passed by the Additional Munsif, Bhilwara, by which he allowed the plaintiff-non-petitioners to withdraw the suit with permission to file a fresh suit.

2. The plaintiff-non-petitioners instituted a suit for ejectment against the tenant-petitioner on the ground of material alteration. The written statement was filed contesting the suit. When the case was fixed for final arguments, the plaintiff-non-petitioners submitted an application on Nov. 11, 1978 praying that they may be permitted to withdraw the suit, for the suit was in respect of the trust-property and all the trustees having not been joined as the plaintiffs, it suffers from the formal defect and, so, permission may be granted for bringing a fresh suit in respect of the same subject matter. The learned Additional Munsif by his order dated December 16, 1979, permitted the withdrawal of the suit with permission to file a fresh suit. Aggrieved, the defendant-petitioner has filed this revision.

3. I have heard Mr. N.P. Gupta, learned Counsel for the petitioner, on behalf of the non-petitioners no body has appeared to oppose the revision.

4. Learned counsel has placed the copy of the withdrawal application dated November 11, 1978, for my perusal. It will be useful here to reproduce paras 1, 2, and 3 of the application and also the prayer made therein. They are as under:

1- ;g fd mDr okn VLV lEifRr ds ckjs es ls vkSj fdjk;snkjh ds vk/kkj ij izfroknh ds fiLr nk;j ls vkSj oknhx.k eSusftax VLVh Fks vkSj eSusthue VLVh ds uke fdjk;k fpV~Bh fy[kh x;h vkSj ml vk/kkj ij ;g nkok gS A

2- ;g fd nkok nk;j djus ckn ;g ekywe gqvk fd VLV lEifRr ds dCts oknh ds nkos es ,d gh O;fDr us nkok fd;k gks rks Hkh VLVh lEifRr dss dCts oknh nkos es VLVh lkjh cjkcj gS A mlds vHkko es nkok i< ugh ldrk gS A

vr% izkFkZuk gS fd mDr dkj.kks ls oknh dsk viuk okn i= mBkus o u;k okn i= is'k djus dh btktr fnykbZ vkSj VLVh o/k gh ds vHkko es VLV lEifRr ds nkos i< ugh ldrs gS A;g ,d ijsjer fMQhdYV gS lh blh okn gsrq u;k nkok izfroknh us foLr lk{kh djkus dk iqu% is'k djus dh btktr fnykos A

11&11&1978

A perusal of para 2 of the application, shows that it has been stated by the plaintiffs that as suit relates to possession of the trust-property, all the trustees are necessary parties and in their absence, the suit cannot proceed.

5. Mr. N.P. Gupta, learned Counsel for the petitioner contended that non-joinder of necessary parties in a suit is not a 'formal defect' as envisaged by Order XXIII, Rule 1, Civil Procedure Code and that according to the averments made in the application, it is abundantly clear that necessary parties were not joined. The question that, therefore, arises is whether non-joinder of necessary parties is a 'formal defect' within the meaning of Oder XXIII, Rule 1, CPC or not? A 'formal defect' means a defect in form, which is prescribed by the rules of procedure and further that the defect which goes to the root of the plaintiff's plaint cannot be termed as a 'formal defect'. It was held by Gajendragadkar, J., as he then was, in Tarachand v. Gaibihaji : AIR1956Bom632 that failure to make a proper claim and failure to implied parties in respect of the claim cannot be properly regarded as a formal defect, which is fatal to the suit within the meaning of O. XXIII, Rule 1, CPC in which Assian Assurance Co. Ltd. v. Madholal AIR 1950 Bom 378 has been referred. A similar question arose before a learned Single Judge in Brahmanand v. Prabhati 1977 WLN (UC) 61. In that case the plaintiff sought permission for withdrawing the suit with liberty to bring fresh suit on the same subject-matter as the defendant had raised, interalia, a plea that widow of His a necessary party. The learned Munsif in that case, held that this defect was not formal. The application was rejected. Against that, a revision was filed in the High Court. The learned Judge observed as under:

Omission to implead necessary party cannot be regarded as a formal defect. Such a defect is fatal to the suit. Learned counsel for the petitioner was not able to point out any other sufficient ground which may justify permission to the petitioner to withdraw the suit with liberty to bring fresh suit.

Learned Judge, therefore, came to the conclusion that the case was not covered by el. (2) of Rule 1 of O. XXIII, CPC. I respectfully agree with the view taken in Tarachand's case (1) and Brehamanand's case (3). The plaintiff under O. XXIII, Rule 1 CPC, can withdraw a suit as a matter of right. This, however, precludes him from suing again on the same subject-matter. According to Clause (2) of Rule 1 of O. XXIII, CPC, where a court is satisfied that the suit must fail by reason of some formal defect and 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. In this case, as found by me above that the non-joinder of the trustees, which according to the plaintiff-non-petitioners, are necessary parties, is not a formal defect and no permission could be granted by the learned Additional Munsif to the plaintiffs to withdraw the suit with a liberty to file a fresh suit. The conditions laid down in O. XXIII, Rule 1, CPC are not satisfied.

6. It may be stated here that the order under revision does not contain any reasons whatsoever. The learned Additional Munsif does not seem to have applied his mind to the provisions contained in O. XXIH, Rule 1, CPC. As the learned Additional Munsif has ordered the suit to be withdrawn with leave to file fresh suit without giving any reasons, he has acted with material irregularity in exercise of his jurisdiction.

7. For the aforesaid reasons, the order dated December 16, 1978, allowing withdrawal of the suit with permission to file a fresh suit, cannot be sustained.

8. The result is that I allow the revision and set aside the order dated December 16, 1978, and dismiss the application for withdrawal of the suit. The learned Additional Munsif will proceed with the trial of the suit in accordance with law.

9. There will be no order as to costs of the revision petition.

10. An after word. This order will not preclude the plaintiff-non-petitioners, if it is permissible in law, to add trustees as parties, if they so like.


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