Madhya Pradesh High Court
Vinod Kumar Gupta vs Smt. Ramadevi Shivhare And Anr. on 22 September, 2007
Equivalent citations: 2008(1)MPHT83, AIR 2008 (NOC) 358 (M.P.) (GWALIOR BENCH), 2008 AIHC (NOC) 573 (M. P.) (GWALIOR BENCH)
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Challenging the order Annexure P-1, dated 13-8-05 passed by 1st Additional District Judge, Dabra, District Gwalior in Civil Suit No. 10-A/04 allowing an application under Order 23 Rule 1, Sub-rule 3(kh), CPC permitting the plaintiffs/respondents to withdraw the suit and granting liberty to file a fresh suit, petitioner has filed this petition.
According to Shri V.K. Bhardwaj, learned Counsel representing the petitioner, the legal question involved in this petition is as to whether the non-joinder of parties in a suit can be a formal defect entitling the plaintiff to withdraw the suit and seeking liberty to file a fresh suit under Order 23 Rule 1, Sub-rule (3), CPC?
2. Facts in brief necessary for disposal of this petition are that plaintiffs/respondents filed the suit in question for declaration and permanent injunction against the defendant/the present petitioner with regard to certain open land as detailed in the suit. The injunction and declaration was sought on the ground of adverse possession and prayer made was that respondents be restrained from interfering with the plaintiff's possession and on the basis of adverse possession to be declared owner of the said land. Petitioner who is defendant in the suit appeared and denied the allegations made in the plaint. It was case of the defendant that one Anil Kumar Shivhare brother of the plaintiff is a tenant of the disputed property. Defendant No. 1 Shri Vinod Kumar Gupta has testified in Civil Suit No. 236-A/01 Vinod Kumar Gupta v. Gote Ram to the effect had admitted that his brother Anil Kumar Shivhare is a tenant of the suit property and petitioner/defendant is the landlord. It was stated that thereafter when the petitioner filed suit for eviction against Anil Kumar Shivhare, the present suit which has been filed malafidely so that the suit filed against Anil Kumar Shivhare is frustrated. On the basis of submission made in the written statement, various issues were framed, evidence of plaintiff were recorded and after plaintiff closed his evidence, petitioner submitted his evidence by way of affidavit under Section 18, Rule 4, CPC. After the evidence of the defendant/petitioner under Order 18 Rule 4, CPC was submitted, the application Annexure P-6 under Order 23 Rule 1(3) read with Section 151, CPC was filed and in the said application Annexure P-6 it was stated that the suit is filed only by plaintiff No. 1 but his other sons are also necessary parties, because of non-joinder of proper party, the suit may fail, therefore, contending that there is some formal defect in the suit, application is filed for withdrawal of the suit with liberty of filing a fresh suit. Accordingly, permission is granted to the plaintiffs to withdraw the suit with liberty to file a fresh suit. Inter alia contending that non-joinder of party is not a formal defect as contemplated under Sub-rule (3) of Rule 1 of Order 23 and on this ground suit cannot be permitted to be withdrawn, petitioner seeks interference in the matter.
3. In support of aforesaid contentions, Shri V.K. Bhardwaj invites my attention to the principles laid down by the Orissa High Court in the case of Khatuna and Anr. v. Ramsewak Kashinath and Anr. to emphasise that non-joinder of necessary party in a suit is not a formal defect, the defect strikes at the root of the suit in any stage and the provisions of Order 23 Rule 1(3) is not attracted. He placed further reliance in this regard to another judgment of Himachal Pradesh High Court in the case of Smt. Savitri Devi v. Hiralal , wherein also similar principles are laid down. That apart, inviting my attention to judgment of this in the case of Uma Devi and Anr. v. Nagarpalika Begamgunj and Ors. 1999 (11) MPJR 487, Shri Bhardwaj argued that permission to withdraw the suit cannot be granted as a matter of right, it can be granted only if sufficient and good ground for withdrawal of suit is made out. Accordingly, he submits that in the facts and circumstances of the case as the suit is permitted to be withdrawn on the ground of formal defect which is impermissible, he seeks interference in the matter.
4. Shri R.P. Gupta, learned Counsel representing the respondents refuted the aforesaid and argued that as there is formal defect in the suit due to non-joinder of party, plaintiffs has a right to withdraw the suit and therefore, order passed by the Court below exercising jurisdiction under Order 23 Rule 1(3), CPC being proper, no case is made out for interference in these proceedings under Article 227 of the Constitution.
5. I have heard learned Counsel for parties at length and perused the record. Order 23 of CPC deals with withdrawal and abandonment of the suit. Rule 1 of Order 23 pertains withdrawal of a suit or abandonment of part of claim. Under Sub-rule (3) of Rule 1, the plaintiff can be granted permission at any time after institution of suit either to withdraw the suit or to abandon any or part of the claim and the said permission under Sub-rule (3) can be granted when the Court is satisfied that the suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suitor part of a claim.
7. The question as to whether non-joinder of party in a suit is a formal defect as contemplated under Sub-rule (3) of Rule 1 of Order 23, CPC has been considered in the case of Khatuna and Anr. (supra) by the Orissa High Court. It has been held by the Orissa High Court in the aforesaid case that non-joinder of necessary party in a suit is not a formal defect. It is held that such a defect strikes at the root of the suit and in such case provision of Order 23 Rule 1 is not attracted. For arriving at such a conclusion and before lying down the aforesaid principle, the Orissa High Court has placed reliance on a Division Bench's judgment of the Calcutta High Court in the case of Haridas Sadhu Khan v. Giridhari Sadhu Khan AIR 1934 Cal. 59, wherein it has been held by the Calcutta High Court that the defect to the effect in a suit that certain necessary party was not impleaded is not a formal defect. It is seen that similar view was expressed in the case of Ram Padarth Misir v. Data Din Misir AIR 1941 Oudh 417 and by the Allahabad High Court in the case of Muktanath Tiwari v. Vidyashanker Dube AIR 1943 Allahabad 67. In the case at Asian Assurance Co. Ltd. v. Madholal Sindhu AIR 1950 Bombay 378, Chief Justice Chagla who wrote the judgment on behalf of Division Bench has also held that non-joinder of some of the parties in the suit is not a formal defect as contemplated under Order 23 Rule 1, CPC, thereafter again Bombay High Court in the case of Tarachand Bapuchand v. Gaibihaji Ahamed Bagwan has taken similar view and judgment in this case was rendered by Shri Gajendragadkar, J., as He then there was. It is seen that the judgments of the Bombay High Court were followed by the Orissa High Court in the case of Trinath Parida v. Sobha Bholaini AIR 1973 Orissa 387 and it was held that nonjoinder of necessary party is not a formal defect. The principle laid by the Himachal Pradesh High Court in the case of Savitri Devi (supra) was also taken note of in this case and it was held that principle laid down by the Bombay High Court in the case of Tarachand Bapuchand (supra) and the Oudh High Court in the case of Ram Padarth Misir (supra), are relied to the Himachal Pradesh High Court and the principles laid in all these judgments are that non-joinder of necessary party is not a formal defect but the defect which strikes at the root of the suit.
7. It is seen from the judgments of Orissa High Court and Himachal Pradesh High Court that various judgment have been relied upon and it has been the consistent view of most of the Courts that non-joinder of the party is not a formal defect. In the case of Uma Devi (supra), a Bench of this Court has held that right granted to the plaintiff under Order 23 Rule 1(3), CPC cannot be claimed as a matter of right. It has been held that plaintiff is required to satisfy the Court and should show good ground for seeking permission to withdraw the suit and grant of liberty. It has been held by this Court in the case of Uma Devi (supra), that a trial de novo is not to be lightly granted to plaintiff to enable to come prepared to fight a fresh legal battle.
8. Keeping in view the totality of the facts and circumstances of the case and the principle that emerges from a complete reading of the judgments as indicated hereinabove, it has to be held that in the present case the suit has proceeded to a stage where defendant's evidence under Order 18 Rule 4, CPC has been filed and plaintiffs now wants to withdraw the suit and proceed with a trial de novo. As the only reason given for invoking the jurisdiction under Sub-rule (3) of Rule 1 of Order 23 is non-joinder of party and as non-joinder of necessary party is held not to be a formal defect by various High Courts in the judgments as indicated hereinabove, the application cannot be allowed. Nothing contrary is brought to notice of this Court and this Court also does not see any reason to held that defect of non-joinder of party is not a formal delect. Accordingly, in the facts and circumstances of the case, it has to be held that the grounds contemplated for withdrawal of a suit under Order 23 Rule 1(3), CPC is not made out by the plaintiffs in the present case and in allowing the application for withdrawal of the suit under Order 23 Rule 1(3), CPC without ingredient of the same being satisfied, learned Court has committed grave error which warrants interference now in these proceedings under Article 227 of the Constitution.
9. Accordingly, finding much force in the contentions advanced by Shri V.K. Bhardwaj, learned Counsel for the petitioner and finding the order passed by the Court below to be erroneous and contrary to the principles of law it has to be held that learned Court has exercised jurisdiction in an incorrect manner which is impermissible under law. Accordingly, this petition is allowed. The order impugned Annexure P-1, dated 13-8-05 granting permission to the plaintiffs to withdraws the suit in question is quashed. Learned Court is directed to proceed with the suit in accordance with law.
10. Petition stands allowed and disposed of with the aforesaid without any order so as to costs.