Gauhati High Court
Tofiz Uddin vs Eusob Ali And 3Ors on 4 March, 2020
Equivalent citations: AIR 2020 GAUHATI 65, AIRONLINE 2020 GAU 102
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/10
GAHC010226492014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 269/2014
1:TOFIZ UDDIN
S/O LT. HAFIZ UDDIN, VILL. KOKILA MASPARA, P.S. ABHAYAPURI, DIST-
BONGAIGAON, ASSAM
VERSUS
1:EUSOB ALI and 3ORS
S/O LT. TOMEZUDDIN, VILL. KOKILA MASPARA, P.S. ABHAYAPURI, DIST-
BONGAIGAON, ASSAM
2:AKBAR ALI
3:AYNAL HAQUE
4:MOYNAL HOQUE
DEFENDANT NOS.2
3and4 ARE S/O LT. TOMEZ UDDIN
VILL. KOKILA MASPARA
P.S. ABHAYAPURI
DIST- BONGAIGAON
ASSA
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. S. Banik
For the respondents : Mrs. R. Choudhury
Date of hearing : 27.02.2020
Date of judgment : 04.03.2020
Page No.# 2/10
JUDGMENT AND ORDER
Heard Mr. S. Banik, learned counsel for the petitioner. Also heard Mrs. R. Choudhury, learned counsel for the respondent.
2. This application under Article 227 of the Constitution of India, has been filed to assail the order dated 21.07.2014 passed by the learned Munsiff, North Salmara, Abhayapuri in T.S. No. 70/2013, allowing the respondent/plaintiff to withdraw the suit and to file fresh suit in the form of counter-claim in T.S. No.70/2013.
3. The petitioner herein is the defendant No.1 in the said T.S. No.70/2013. The suit was for declaration of right, title, interest, recovery of khas possession and cancellation of sale deed No.2445 dated 22.12.1993 and for permanent injunction. The petitioner herein, who was the defendant No.1, filed his joint written statement along with defendant No.2, namely, Akbar Ali and the petitioner has also filed a counter-claim. It may be stated that the said Akbar Ali was arrayed as respondent No.2. However, pursuant to order dated 15.12.2014, his name has been struck off. In the written statement, the petitioner had denied the claim of the respondent No.1 and in the counter-claim, the petitioner have sought for the following reliefs:
I. For declaration that the defendant No.1 has every right, title, interest over the suit land.
II. For declaration that the plaintiff have no right, title, interest over the suit land.
III. For declaration that the sale deed No.2445 dated 22.12.93 is valid., legal and binding upon the plaintiff.
IV. For any other relief as the defendant No.1 is entitled in law and equity.
4. The respondent No.1 filed his written statement against the counter-claim of the petitioner.
5. By taking up the plea that there were formal defects in the plaint and further stating that plaint did not disclose the actual facts and the non pleading of facts had made Page No.# 3/10 the plaint to suffer from formal defects and by further stating that all the actual facts was stated in the written statement filed against the counter-claim. The respondents filed a petition under Order XXIII Rule 1(3) CPC. In paragraph 6 of the said petition, the nature of formal defects were stated which are reproduced herein below:
"a) That, the description of the suit land has not been properly described and pleaded in the schedule as well as in the body of the plaint.
b) That, the periodic patta i.e. the most vital document on presumption of title of the land, wherein the name of the defendant No.1 has illegally entered has not been challenged, and due to non-challenge of the periodic patta, the suit suffers from formal defect.
c) That, the alleged Regd. Sale deed having No.665 dated 1/3/1995 which has been executed by Moynal Hoque in favour of the defendant No.1 is an illegal sale deed, but the present plaint does not contain any challenge on its illegality for which the plaint suffers from non-pleading of actual facts.
d) That, the suit land ought to have been measuring 1 Bigha 3 Katha 41/2 Lessa but the suit land has been shown as 1 Bigha 2 Katha 10 Lessas thus the full relief has not been sought for through the present plaint, in such situation, the suit of the plaintiff must fail."
6. The petitioner herein did not file the written statement, but the order impugned herein, it has been mentioned that the petitioner had filed written objection against the petition No.795/2014. The said learned trial Court by referring to the case of Beniram & Ors. vs Gaind & Ors, (1981) 4 SCC 209, allowed the said petition and permitted respondent No.1- plaintiff to withdraw the suit and permitted the respondent No.1 to file a counter-claim in T.S. No.70/2013.
7. The learned counsel for the petitioner has submitted that in the said petition there was an admission by respondent No.1 to the effect that he cannot obtain relief in the suit filed by him and, as such, the lack of merit of the plaint, whatever reasons, would not be covered by the meaning of 'formal defect', but such defect was a 'substantive defect' for which the suit was likely to be dismissed. In order to explain the expression 'formal defect', the learned counsel for the petitioner has referred to the cases of (1) Urvashiben & Anr. vs Page No.# 4/10 Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372, (2) V. Rajendran vs Annasamy Pandian, (2017) 5 SCC 63, and (3) Dilboo (Smt.) (Dead) By Lrs. & Ors. Vs Dhanraji (Smt.) (Dead) & Ors, (2000) 7 SCC 702.
8. It is submitted that as there was no written objection on record by the petitioner, and the learned trial Court permitted withdrawal of the suit with liberty to file the same as a counter-claim to his counter-claim, it would affect his valuable right to take appropriate defence in the proposed counter-claim to be filed by the respondent No.1 because at a later point of time, there is a possibility that the Courts adjudicating the matter would construe as his objection to maintainability of the proposed counter-claim by the respondent No.1 is deemed to have been wait.
9. It is also submitted that the respondent No.1 in the present suit, i.e. T.S. No. 70/2013, had sought for cancellation of sale deed No. 2445 dated 22.12.1993, as such, the said challenge was made after twenty years by filling T.S. 70/2013 and the question of limitation would get nullified by permitting the respondent No.1 to file a counter-claim instead of maintaining the challenge to the said sale deed in the present suit because at this point of time, the challenge to sale deed No.2445 dated 22.12.1993 would be hopelessly barred by limitation. It is submitted that in the written statement filed by the petitioner, they had disclosed about the registered sale deed No. 665 dated 14.03.1995. The said written statement-cum-counter-claim of the petitioner was filed in March 2014 and, as such, by permitting the respondent No.1 to file counter-claim, there is every likelihood that issue of limitation would be ignored. In this regard, it is submitted that even assuming the date of knowledge regarding sale deed No.665 dated 14.03.1995 for the sake of argument, but without admitting, would be 01.03.2014, the date when the written statement-cum-counter- claim was filed, by the time the said sale deed is challenged, the challenge would be hopelessly barred by limitation. Accordingly, it is submitted that this was not a case of any formal defect in the plaint and, as such, the impugned order was not tenable and the same warranted interference.
10. The learned counsel for the respondent No.1 has submitted that lack of pleadings in the plaint has been held to be technical impediment which may result in dismissal of the suit and may further impede a fresh adjudication in a subsequent challenge, which was a Page No.# 5/10 consideration of allowing the suit to be withdrawn by the Supreme Court of India at the well deciding civil appeal in the case of Beniram & Ors.(supra). Hence, it is submitted that as the learned trial Court had relied in the said case law being a binding precedent, there was no infirmity in the impugned order allowing the plaint to be withdrawn by the respondent No.1 and to be filed in the form of a counter-claim, which according to the provision of Order VIII Rule 6A CPC was to be treated as a separate suit for all purposes. In this regard, the learned counsel for the respondent No.1 has also relied in the case of Beniram & Ors. (supra).
11. From the contention of the learned counsel for the parties, two points for determination have arisen in this case:
1. Whether the lack of pleading as projected by the respondent No.1 would amount to 'formal defect' which would be sufficient ground for the trial Court to withdrawal of the suit?
2. Whether the plaintiff can be permitted to withdraw the suit and to be permitted to file a suit afresh in form of counter-claim to the existing counter-claim of one of the defendants in the suit?
12. It is seen that in the petition under Order XXIII Rule 1(3) CPC, there is a categorical statement in paragraph 5 thereof that the "relief ought to sought for in the plaint by the plaintiff cannot be obtained by the plaintiff in the present suit". In paragraph 7 thereof, the prayer of the respondent No.1 was to allow him to withdraw the suit with liberty to file afresh.
13. As per paragraph 6 of the said petition, which is quoted hereinbefore, the suit land was not properly described in the schedule as well as in the body of the plaint. The periodic patta which contains the name of the petitioner herein was not challenged, the sale deed No. 665 dated 14.03.1995, executed by Moynal Haque in favour of the petitioner herein was not challenged. The suit land ought to have been 1 Bigha-3 Katha-4 1/2 Lecha, which was mentioned as 1 Bigha-2 Katha- 10 Lecha. None of these defects stated to exist in the plaint constitutes a formal defect. It would be relevant to prove the provision of Order XXIII Rule 1 CPC. The Full Bench of the Bombay High Court has referred to various case laws in the meaning of various terms as contained in dictionary and arrived at a conclusion that Page No.# 6/10 "sufficient grounds as referred to in Clause (b) sub Rule 3 of Rule 1 of Order XXIII of the CPC need not be ejusdem generis that the ground mentioned in Clause (a) of Sub Rule 3, but they must be atleast analogous to it. It has further been held therein that the instances of defects of 'form' cited by Privy Council in Robert Watson & Co. vs The Collector of Zillah Rajshahy, (1869) 13 Moo.I.A. 161 includes mis-joinder of parties or of the matters in suit, rejection of material documents for not having a proper stamp and the erroneous valuation of the subject matter of the suit and it was held that the expression 'formal defect' must be given a wide and liberal meaning, and must be deemed to connote every kind of defect which does not affect the merits of the case, where that defect be fatal to the suit or not. Applying the said text, the Court is constrained to hold that the defects as referred to by the respondent No.1 in paragraph 6 of petition No.795/2014 effects the merits of the case and, as such, those defects cannot be said to be a 'formal defect'.
14. In respect of the case of Beniram & Ors.(supra), on a consideration of the submission of the learned counsel for the respondent No.1 that non pleading may prove a technical impediment and impede a fresh adjudication, the Supreme Court of India had permitted the appellant therein to withdraw the suit with liberty to file a fresh suit. However, the said cited case, as indicated therein, was in the interest of justice and there was no formal adjudication of the question involved in the said appeal. Accordingly, as no ratio was laid down for the said case, the decision rendered in the case of Beniram & Ors. (supra) would not be a formal adjudication and would not constitute a binding precedent as the said order was passed on the facts of the said case.
15. In the case of K.S. Bhoopathy & Ors. vs Kokila & Ors. (2000) 5 SCC 248, it has been held by the Supreme Court of India that it is the duty of the Court to satisfy about the existence of 'formal defects' or 'sufficient grounds' before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action, further holding that though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the 'formal defect' or 'sufficient ground', such right cannot be considered to be so absolute of the process of Court and that it was also held that when an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the 'formal defect' or 'sufficient grounds'. It was also held that a formal defect is a defect of form prescribed by the rules of procedure, such as, (1) want of notice under section 80 CPC, (2) no Page No.# 7/10 proper valuation of the suit, (3) no sufficient Court Fee, (4) confusion regarding identification of the suit property, (5) mis-joinder of parties, and (6) failure to disclose a cause of action etc. It was also held that 'formal defect' must be given a liberal meaning which connotes various kind of defects not effecting the merit of the plea raised by either of the parties. In the case of V. Rajendaran vs Annasamy Pandiyan (Dead) through Lrs , the defect in the survey of the suit property was held to constitute formal defect and, as such, withdrawal of the suit was allowed by the learned trial Court which was upheld by the Supreme Court of India. By relying on the ratio laid down in the case of K.S. Bhoopathy & Ors. (supra).
16. Accordingly, the Court is constrained to hold that the defects which is cited in paragraph 6 of petition No.795/2014 do not constitute 'formal defect' or 'defecting form', but the same constitutes defects touching the merit of the suit. Accordingly, the first point of determination is answered in the affirmative and in favour of the petitioner.
17. In respect of point of determination No.2, it is seen that the respondent No.1 herein is the plaintiff and the petitioner being the defendant No.1 had filed a counter-claim. In the present case in hand, the written statement against the counter-claim of the petitioner was filed on 28.05.2014. In the case of Ramesh Chand Ardawatiya vs Anil Panjwani, (2003) 7 SCC 350, it has been held by the Supreme Court of India that the counter-claim must necessarily find its place in the written statement. Paragraph 28 of the said case is quoted below:
"28. Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the Page No.# 8/10 CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of 'subsequent pleading' as there is no 'previous pleading' on record. In the present case, the defendant having felled to file any written statement and also having forfeited his right to filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter- claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim."
18. The provisions of Rule 6A(1) of Order VIII CPC provides that "a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter- claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but Page No.# 9/10 before the defendant has delivered his defence or before the time limited for delivering his defence has expired". These words indicates that pleading by way of counter-claim runs with a right of filing a written statement. Accordingly, the counter-claim must necessarily find its place in the written statement. In the case of Ramesh Chand Ardawatiya (supra), it has been held that atleast the right of the defendants to file written statement has been lost or the time limited for delivery of the defence has expired, then neither the written statement can be filed as of right in order to a counter-claim can be allowed to be raised, for the counter- claim under Rule 6A of Order VIII CPC.
19. From a reading of paragraph 28 of the case of Ramesh Chand Ardawatiya (supra), it is seen that the Supreme Court of India has held that even if the counter-claim is refused to be entertained, a party is always at liberty to file his own suit based on the cause of action for counter-claim.
20. In the present case in hand, the respondent No.1 did not make a prayer before the learned trial Court for allowing him to file a fresh suit by way of counter-claim. Under such circumstances, without considering the legality of maintainability of counter-claim for which the law is well settled in the case of Ramesh Chand Ardawatiya (supra), the permission granted by the learned trial Court to file a suit by way of counter-claim is not sustainable as the counter-claim would not be a part of the written statement.
21. Accordingly, the second point for determination is answered in the negative in favour of the petitioner.
22. Having seen that the learned trial Court while passing the impugned order did not consider various legal aspects in permitting the suit to be withdrawn and to allow filing of a fresh suit by way of counter-claim and in the said context, the learned counsel for the petitioner is now raising the plea that by permitting filing of a counter-claim, the claim which should be otherwise barred by limitation, is allowed to be introduced by way of a counter- claim.
23. From the above discussion, by holding that the order impugned herein suffers from jurisdictional error, this Court deems it fit and proper to remand the matter for fresh decision Page No.# 10/10 by setting aside the impugned order dated 21.07.2014 passed by the learned Munsiff, North Salmara, Abhayapuri in T.S. No.70/2013.
24. The said suit as well as the petition under Order XXIII Rule 1(3) CPC, being petition No. 795/2014 is restored to file. The learned Munsiff, North Salmara, Abhayapuri shall now grant an opportunity to the defendants in the suit to file their written objection and to hear the learned counsel and pass fresh orders on the said petition No. 795/2014 in accordance with law.
25. The petitioner and the respondent No.1 herein was represented by the learned counsel shall appear before the learned Munsiff, North Salmara, Abhayapuri on 01.04.2020 and by producing a certified copy of this order, seek further instruction from the said learned Court.
26. This revision stands allowed.
JUDGE Comparing Assistant