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Bhandari Vs. Shiamu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 21 of 1955
Judge
Reported inAIR1956HP16
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 23, Rule 1
AppellantBhandari
RespondentShiamu and anr.
Advocates: D.R. Ahluwalia, Adv.
DispositionPetition dismissed
Cases ReferredLall Ram v. Naresh Chand
Excerpt:
- .....senior subordinate judge, bilaspur, permitting the withdrawal of a suit with permission to bring a fresh suit. the suit, as originally filed, was for a declarationthat an alienation made by one gokal would not affect the reversionary rights of the plaintiffs after his death. during the pendency of the suit, gokal died and thereupon it became incumbent upon the plaintiffs to ask for possession in addition to declaration. the court below, while conceding that the purpose could be served by allowing the amendment of the plaint, felt that withdrawal of the suit, with permission to bring a fresh suit, would be more 'advisable'. on these premises, it permitted the withdrawal of the suit, with liberty to bring a fresh suit, on payment of rs. 10/- as costs to the opposite side. 2. learned.....
Judgment:

Ramabhadran, J.C.

1. This is a revision petition against an order passed by the Senior Subordinate Judge, Bilaspur, permitting the withdrawal of a suit with permission to bring a fresh suit. The suit, as originally filed, was for a declarationthat an alienation made by one Gokal would not affect the reversionary rights of the plaintiffs after his death. During the pendency of the suit, Gokal died and thereupon it became incumbent upon the plaintiffs to ask for possession in addition to declaration.

The Court below, while conceding that the purpose could be served by allowing the amendment of the plaint, felt that withdrawal of the suit, with permission to bring a fresh suit, would be more 'advisable'. On these premises, it permitted the withdrawal of the suit, with liberty to bring a fresh suit, on payment of Rs. 10/- as costs to the opposite side.

2. Learned counsel for the petitioner argued that the order of the Court below was against law inasmuch as there was no formal defect whereby the suit was bound to fail. .Reliance was placed, in this connection, on 'Rameshwar Bakhsh Singh v. Rasul Beg', AIR 1918 Oudh 163 (1)(A), where Lindsay, J. C,, indicated as follows :

'An application for leave to withdraw a suit, with liberty to bring a fresh suit under Order 23, Rule 1, should not be granted if the defect, on the basis of which the leave to withdraw is asked for, can be cured by amendment of the pleadings.'

There, the facts were that the plaintiff claimed possession of a small strip of land on the basis of title. The defendant denied the plaintiff's right. A Commission was issued. The report of the Commissioner went against the plaintiff. Subsequently, the plaintiff applied under Order 23, Rule 1 asking for leave to withdraw the suit with liberty to bring a fresh suit.

One of the allegations made in that petition was that the suit had been brought on the presumption that the entries in the Khasra and the map were correct and they correctly showed the position of the plaintiff's house. Another allegation made was that although a certain 'gosha', described as No. 25, was shown in the Khasra,, it was not shown in the map.

Without giving any reasons for his decision, the Subordinate Judge of Lucknow accepted the petition and allowed the case to be withdrawn.. Under these circumstances, Lindsay, J.C., held that there were no sufficient grounds for granting the application.

3. In the present case, however, the facts are different. As already stated, Gokal, defendant, died during the pendency of the suit and, therefore, it became necessary for the plaintiffs to sue for possession along with declaration. The Court below has pointed out that certain other persons had to be impleaded as defendants following the death of Gokal.

It may be that the purpose could be served by an amendment of the plaint, but the Court below, in the exercise of its discretion, thought ft' proper to allow the withdrawal of the suit with liberty to bring a fresh suit. In 'Sadeq Reza v. Nawab Asaf, AIR 1931 Cal. 268 (B), a Division Bench of that High Court remarked that:

'The words 'other sufficient grounds' are wider than the words used in the preceding clause, namely 'formal defect' and the 'other ground' mentioned in Clause (b) must be some ground other than and different from '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 interest of justice, he should be allowed to withdraw 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. The matter is mostly within the discretion of the Court.

In order to induce High Court to interfere in revision with matters mostly within the discretion of trial Court it is necessary that it should be perfectly satisfied that the order was not supported by any consideration of justice or by any provision of law.'

It cannot be said that, in the present case, the order passed by the Court below was not supported by any consideration of justice or by any provision of law. In 'Lall Ram v. Naresh Chand', AIR 1952 Hima. P. and Bilas. 28 (C), my learned predecessor had occasion to observe that:

'The arriving at a conclusion or decision is a mental operation and the Court cannot be said to be acting in so coming to a conclusion or decision on a question of law or of fact; and so far as arriving at a conclusion or decision is concerned, whether the lower appellate Court decides questions rightly or wrongly, it has jurisdiction to do so, and even if it decides wrongly, it cannot be said to have acted with material irregularity in the exercise of its jurisdiction.'

4. No case is, therefore, made out for interfering in revision. Consequently, the petition is rejected.


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