Himachal Pradesh High Court
Kanta Devi vs Jagdish Chand And Others on 25 August, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 267 of 2017
Decided on 17.8.2017.
Kanta Devi ....Petitioner.
.
Versus
Jagdish Chand and others ... Respondents.
................................................................................................
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. G.R. Palsra, Advocate.
For the respondents
r : Mr. Ajay Sharma, Advocate
Ajay Mohan Goel, J. (Oral).
By way of this petition filed under Article 227 of the Constitution of India, the petitioner assails order dated 17.5.2017 passed by the Court of learned Civil Judge (Junior Division), Court No. IV, Hamirpur in CMA No. 494 of 2016 in Civil Suit No. 164 of 2013, whereby an application filed by the present petitioner under Order 23 Rule 1 read with Section 151 of CPC praying for permission to withdraw the suit with liberty to institute a fresh suit on the same cause stands dismissed.
2. I have heard learned counsel for the parties and have also gone through the documents appended with the petition.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/08/2017 22:56:02 :::HCHP 23. A perusal of order so assailed by way of this petition demonstrates that after filing of the suit which was filed in the year 2013 and after framing of issues on 6.6.2015 more than five .
opportunities were given by the Court to the plaintiff to lead evidence but no evidence was led by the plaintiff. In the interregnum, an application was filed by the plaintiff under Order 6 Rule 17 of CPC for amendment of plaint, which also stood allowed by learned court below. The averments made in the application so filed under Order 23 Rule 1(3) of the CPC demonstrate that plaintiff had filed said application, inter alia, on the ground that in their written statement defendants had challenged the title of the plaintiff which necessitated the filing of the application under Order 23 Rule 1 (3) of the CPC.
Learned court below while rejecting said application so filed by the present petitioner observed that written statement was filed on 14.11.2013 in which the title of the plaintiff stood disputed by the defendants and no cogent explanation had been given by the plaintiff as to why application under Order 23 Rule 1 (3) CPC was being filed after more than three years of the written statement having been filed.
Impugned order further demonstrates that what weighed with learned trial court while dismissing the application was that the filing of the application was nothing but an afterthought as the same was filed only after learned trial court had passed order that in case evidence was not ::: Downloaded on - 26/08/2017 22:56:02 :::HCHP 3 led by the plaintiff on the date so fixed, his right to lead the evidence shall be closed.
4. In the present case, I do not find any infirmity with the .
findings so returned by learned trial court. The purpose of Order 23 Rule 1(3) of the CPC is not to allow the parties to fill up lacuna.
Formal defect and sufficient cause as are contemplated in Order 23 Rule 1 (3) of the CPC have to be culled out from the averments which are so made by the applicant in an application filed under the said provision. A perusal of the application so filed before learned trial court by the present petitioner demonstrates that the same was not a bonafide application but was an attempt to wriggle out of the lapses as well as acts of omission which stood committed by the plaintiff while pursuing the civil suit before learned trial court. When despite sufficient opportunities no evidence was led by the plaintiff and learned trial court had ordered that in case plaintiff fails to lead evidence on the next date then the evidence of the plaintiff will be closed, the plaintiff came up with the application so filed under Order 23 Rule 1(3) of the CPC praying for permission to withdraw the suit with liberty to file a fresh on the same cause. Now it is a matter of record, as has also been held by learned trial court, that written statement to the plaint was filed on 14.11.2013 in which defendant disputed the title of the plaintiff. Reasons given in the application that a fresh suit was necessitated to be filed by withdrawing the pending ::: Downloaded on - 26/08/2017 22:56:02 :::HCHP 4 suit in view of the stand taken by the defendant in the written statement is nothing but an afterthought because it is not understood as to why the application was not filed immediately when the written .
statement was so filed by the defendants. Even otherwise, in my considered view reasons as they find mention in para 2 of the application cannot be grounds for allowing a party to withdraw a civil suit with liberty to file a fresh as obviously contentions of defendant can be rebutted by the plaintiff in replication. Thus it is but obvious that the application so filed before learned trial court under Order 23 Rule 1(3) of CPC was to wriggle out of the lapses which were so committed by the plaintiff. Therefore, as there is no infirmity in the order passed by learned trial court which stands assailed by way of this petition, the same i.e. the present petition is accordingly dismissed so also pending miscellaneous application, if any.
(Ajay Mohan Goel) Judge 17th August, 2017 (Guleria) ::: Downloaded on - 26/08/2017 22:56:02 :::HCHP