Punjab-Haryana High Court
Baljit Singh vs Jot Ram on 20 July, 1994
Equivalent citations: (1994)108PLR261
JUDGMENT G.C. Garg, J.
1. Grant of an application for withdrawal of a suit with permission to file a fresh suit on the same cause of action has given rise to the present petition.
2. Respondent-herein filed a suit seeking a decree of declaration to the effect that decree dated May 30, 1986 suffered by him by fraud and mis-representation and that he continued to be the owner in possession of the suit land. The defendant filed written statement. It was pleaded that decree dated May 30, 1986 was valid and binding on the plaintiff. It was further pleaded that in view of the said decree, the defendant was owner in possession of the suit land and that the suit in the present form was not maintainable. During the pendency of the suit, the plaintiff moved an application dated March 6, 1990 seeking amendment of the plaint to include the relief of possession. This amendment was sought on the ground that the plaintiff had been dispossessed during the pendency of the suit in November, 1989. This application was allowed by the trial court by order dated June 7, 1990 subject to payment of costs. The plaintiff failed to pay the costs within the time allowed. As a result thereof, learned trial court by order dated August 6, 1990 rejected the prayer for amendment. The plaintiff after examining few witnesses moved an application seeking review of the order dated August 6, 1990. This application was dismissed by order dated August 5, 1991. It was thereafter that the plaintiff moved an application under Order 23 Rule 1 Sub-rule (3) of the Code of Civil Procedure seeking permission to withdraw the suit with permission to file a fresh suit on the same cause of action. The trial court allowed the said application. It is how the present revision came to be filed by the defendant.
3. Learned counsel for the petitioner submitted that the trial court acted illegally and with material irregularity in allowing the application for withdrawal of the suit with permission to file a fresh suit on the same cause of action, inasmuch as it did not bring out any formal defect before granting the prayer nor did it indicate that the suit was to fail on account of a formal defect. The learned counsel submitted that at the most the formal defect on account of which the suit was likely to fail was that the plaintiff bad not sought possession of the disputed property and for which he had already been permitted to amend the plaint and act the relief of possession. The suit remained pending for five years and the plaintiff examined as many as five witnesses before moving application for withdrawal of the suit with permission to file a fresh one on the same cause of action Learned counsel further submitted that the plaintiff having been permitted to seek possession of the suit property by allowing his application for amendment of the plant and he having not taken steps to amend the same, could not be permitted to take advantage of his own wrong and withdraw the suit with permission to file a fresh suit on the same cause of action. Learned counsel in support of his above submissions relied upon Banarsi Dass v. Ram Avtar and Ors., 1978(1) Rent Law Reporter 89, Risala and Ors. v. Deva, 1990(1) C.L.J. 287, S. Bhagat Singh v. Satnam Transport Co. Ltd., A.I.R. 1961 Punjab 278 and Dhandar Singh v. Niranjan Kaur, 1986 P.LJ. 339.
4. On the other hand, learned counsel for the respondent by reference to the provisions of Sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure submitted that permission to file a fresh suit on the same cause of action could be granted if the suit was to fail by reason of formal defect or there were other sufficient grounds for allowing the plaintiff to institute a fresh suit Learned counsel for the respondent further submitted that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit. He pointed out that the plaintiff is an old man having six daughters and this constituted a sufficient ground for permitting him to file a fresh suit on the same cause of action. Learned counsel further submitted that there was a formal defect inasmuch as the plaintiff was entitled to possession but he had not sued for possession. The learned counsel in support of his submission relied upon Kanhyia Lal and Anr. v. Nathu and Ors., (1989-2)96 P.L.R.449.
5. I have considered the submissions of the learned counsel for the parties in the light of the case laws cited at the bar. The contention of the learned counsel for the respondent that there were sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action has no merit. The grounds as indicated by the learned counsel cannot be said to be sufficient for permitting the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action. Even otherwise, such grounds had neither been indicated in the application under Order 23, Rule 1(3) of the Code nor brought out on the record at any, stage before the passing of the impugned order. Even till today, there is nothing on the record in that behalf. As regards the formal defect, the plaintiff had been permitted to amend the plaint and seek possession. He, however, did not pay costs and ultimately his prayer for amendment of the plaint was declined. Application for re-calling/reviewing the order dismissing the application seeking amendment was also dismissed. Thus, the plaintiff himself is responsible for the formal defect, in the plaint. It is settled principle of law that if a formal defect in the plaint can be got rectified by seeking amendment of the plaint, permission to file a fresh suit on the same cause of action ought not to be granted. In the present case, the formal defect, as already noticed, was permitted to be rectified but the plaintiff took no steps for carrying out the amendment allowed. The trial court while granting permission has also not recorded a finding, much less a firm finding, that there was a formal defect in the plaint on account of which the suit was to fail before granting the application under Order 23 Rule 1(3) the Code. The order under revision thus, suffers from material irregularity and is not sustainable in law.
6. There is, however, another aspect of the matter as well. This Court in D.A.V., College, Hoshiarpur Society v. Sarvada Nand Anglo Sanskrit Higher Secondary School, Managing Committee, Bassi Kalan, A.I.R. 1967 Punjab 501, held that if the Court found the plaintiff to be out of possession and that the suit was not in proper form and, therefore, not maintainable for the reason that the plaintiff had not asked for possession, the suit is not to be dismissed but the plaintiff is to be given an opportunity to amend the plaint and bring it in the proper form. For it is a duty cast on the Court to grant an opportunity to the plaintiff to bring the suit in the proper form at the fag end of the trial, I deem it fit and appropriate in the facts and circumstances of this case to permit the plaintiff to amend his plaint in terms of the order originally passed by the trial court allowing the application under Order 6 Rule 17 of the Code. The plaintiff shall now file the amended plaint in terms of the said order subject to payment of Rs. 1000/- as costs. The costs earlier awarded for allowing the amendment of the plaint by the trial court shall form part of the costs of Rs. 1000/- awarded herein. Learned counsel for the respondent can hardly draw any assistance from the judgment of this Court in Kanhyia Lal's case (supra). In the case in hand, the plaintiff had been permitted to amend the plaint whereas it was not so in the aforesaid reported case.
7. For what has been observed above, this revision is allowed, order dated February 1, 1992 is set aside and the application under Order 23 Rule 1(3) of the Code shall stand dismissed. Application under Order 6 Rule 17 of Code is allowed subject to payment of costs as indicated above. The trial Court shall now proceed with the suit in accordance with law. Since the plaintiff filed suit in the year 1987 and he is out of possession, the trial court is directed to dispose of the suit on its own merits as expeditiously as possible preferably within one year. The parties through their counsel have been directed to appear in the trial court on August 10,1994.