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Syed Sadeq Reza Vs. Nawab Asaf Kader Syed - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1931Cal268
AppellantSyed Sadeq Reza
RespondentNawab Asaf Kader Syed
Excerpt:
- .....1929, the plaintiff applied to withdraw his claim for ejectment on the ground that there was a formal defect in the notice to quit which he had served on the defendant. the learned judge was of opinion that there was defect in the notice and he allowed the plaintiff to withdraw that portion of the claim. the plaintiff's suit, as present constituted, is therefore for arrears of rent under the lease. it is contended on behalf of the defendant that the lower court has exercised its jurisdiction irregularly in granting the amendment of the plaintiff and in allowing the plaintiff's suit for ejectment to be withdrawn with liberty to bring a fresh suit on the same cause of action. under order 23 the court is invested with discretion to allow a plaintiff to withdraw his claims with leave on.....
Judgment:

1. This rule was obtained at the instance of the defendant in a suit pending in the Court of the Subordinate Judge at Maldah. The plaintiff opposite party brought a suit for cancellation of an ijara lease on several grounds, for the determination of the lease by a notice to quit and for mesne profits. The suit was brought on 11th April 1929. On 20th June 1929 the defendant filed his written statement and issues were framed on 6th July 1929. On 15th August 1929 the plaintiff applied for amendment of the plaint on the ground that by mistake he had left out certain portion of the claim, namely the claim for cesses, and that he might be given a decree for rent. That amendment was allowed and the plaintiff's claim was raised by about Rs. 1,000. On the next date of hearing, that is on 9th September 1929, the plaintiff applied to withdraw his claim for ejectment on the ground that there was a formal defect in the notice to quit which he had served on the defendant. The learned Judge was of opinion that there was defect in the notice and he allowed the plaintiff to withdraw that portion of the claim. The plaintiff's suit, as present constituted, is therefore for arrears of rent under the lease. It is contended on behalf of the defendant that the lower Court has exercised its jurisdiction irregularly in granting the amendment of the plaintiff and in allowing the plaintiff's suit for ejectment to be withdrawn with liberty to bring a fresh suit on the same cause of action. Under Order 23 the Court is invested with discretion to allow a plaintiff to withdraw his claims with leave on certain grounds which are mentioned in Clauses (A) and 03) Rule 2. Clause (A) says that whore the Court is satisfied that a suit will fail by reason of some formal defect, and Clause (B), says that if the Court is satisfied that the suit will fail on other sufficient grounds, the Court may allow the plaintiff to withdraw the suit with liberty to institute a fresh suit on the same cause of action. Now it is argued that there is no defect in the plaint and therefore the Court had no power to allow the plaintiff to withdraw the suit by reason of the do fact in the notice. In the first place, Clause (A) does not say that the formal defect must be in the pleadings and in the second place, under Clause (B), there may be other sufficient grounds ' on which the Court may pass an order giving the relief prayed for. In Clause (13), the words are ' other sufficient grounds.' They are certainly wider than the words used in the pre-cooling clause, namely ' formal defect;' and ' other grounds ' in Clause ( B) must be some ground other than and different from '' formal defect.' Our attention has boon drawn to a number of cases in which it has been hold that ' other grounds ' mentioned in Clause (B) should be Home ground of the same nature as mentioned in Clause (A). That is no doubt a reasonable construction of the clauses put in juxta position to each other. But Clause (B) contemplates some grounds which are not covered by Clause (A). There may be grounds for withdrawing a suit other 'than mere formal defect. For instance the evidence upon which the plaintiff 'relied to prove his case is not for no fault of his available at the hearing; and the Court may, thinking that in the interests of justice ho should be allowed to withdrew the present claim and renew it at 'some future date when he will be in a better position to prove it, allow him to withdraw the suit with liberty to bring a fresh suit on the same cause of action. 'There have boon other circumstances too which have led Courts to allow the plaintiff to withdraw his suit with leave. It is not necessary to detail the circumstances that may arise, but it is a matter mostly within the discretion of the trial Court. In order to induce us to interfere) with a discretionary order of the Court like the 'present, it is necessary that we should be perfectly satisfied that the order is not 'supported by any consideration of justice or by any provision of law. In the present case we do not think that the circumstances are such as to ask for our interference on this point.

2. With regard to the amendment of the plaint, it only claims an alternative relief. If the plaintiff is not entitled to mesne profits, he may be given a decree for the rent claimed with certain other amount which was loft out by mistake. It does not in any way affect the plaintiff's claim for it does not change the nature of the suit or embarrass the defence. The application for amendment, as well as for withdrawal, was made not very long after the institution of the suit and the defendant does not seem to have been really prejudiced either on the ground of expense or in his defence by the amendment allowed. In this view we discharge this rule with costs three gold mohurs.


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