Karnataka High Court
Faizullakhan Kamalkhan Pathan vs Bhagwansingh Kishansingh Paradeshi, on 8 January, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.5386/2010 (DEC/INJ)
BETWEEN:
FAIZULLAKHAN KAMALKHAN PATHAN
AGE:46YRS, OCC:BUSINESS,
R/O BHANDIWAD BASE, C.B.T.HUBLI
DIST:HAVERI-580020.
... APPELLANT
(BY SRI. DINESH M KULKARNI, ADV.)
AND
1. BHAGWANSINGH KISHANSINGH PARADESHI,
AGE:36 YEARS, OCC:BUSINESS,
R/O BHANDIWAD BASE,
C.B.T.HUBLI-580020.
2. INDIRABAI W/O KISHANSINGH PARADESHI,
AGE:60 YEARS, OCC:HOUSEHOLD,
R/O BHANDIWAD BASE, C.B.T.HUBLI-580020.
(Since R2 is reported as dead & R2 & R3 are LR's of R2 deceased
R2 & there are already on record.)
3. RAMALAL KISHANASINGH PARADESHI,
AGE:48YRS, OCC:BUSINESS
R/O BHANDIWAD BASE, HUBLI-580020.
... RESPONDENTS
(R1-HELD SUFFICIENT,
R1 & R3 ARE LR'S OF DECEASED R2.
SRI. SANTOSH B.MALAGOUDAR, ADV. FOR R3.)
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THIS RSA IS FILED U/S. 100 CPC., AGAINST THE
JUDGEMENT & DECREE DTD:25-01-2010 PASSED IN
R.A.NO.59/2008 ON THE FILE OF THE FIRST ADDL. CIVIL
JUDGE(SR.DN) HUBLI, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT DTD:02-04-2008 AND THE DECREE
PASSED IN O.S.NO.392/2004 ON THE FILE OF THE PRL. CIVIL
JUDGE(JR.DN) HUBLI, DISMISSING THE SUIT FILED FOR
MANDATORY INJUNCTION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Order on I.A.No.1/2012 filed under Order 23 Rule 1 read with Section 107 of CPC.
2. Appellant herein was the plaintiff before the trial Court in O.S.No.392/2004, which was pending on the file of the Court of Principal Civil Judge, (Jr.Dn.), Hubli. The said suit was for the relief of mandatory injunction against the respondents/defendants with a request to remove the construction stated to have been made by the defendants / respondents herein. The said suit came to be dismissed on the ground that the boundary mentioned in the schedule appended to the plaint did not tally with the boundaries 3 mentioned in the sale deed relied upon by the plaintiff. The said sale deed has been marked as Ex.P7 in the trial Court. As against the judgment and decree passed by the trial Court, an appeal was filed under Section 96 of CPC challenging the same on various grounds in R.A.No.59/2008 before the First Additional Senior Civil Judge, Hubli. The appeal was also dismissed and thereby the judgment and decree passed of the trial Court was confirmed. The confirmation so made by the first appellate Court is in agreement with the entire findings given by the trial Court, more especially the serious difference between the boundaries relied upon in the plaint schedule and the boundaries relied upon on the document which was the basis for the filing of the suit.
3. Here an appeal is filed under Section100 of CPC challenging the concurrent findings given by the trial Court as well as the first appellate Court. Along with the appeal, an application has been filed under Order 23 Rule 1 of CPC with a request to accord permission to withdraw the suit filed before the trial Court with liberty to file a fresh suit on the same cause of action on the ground that the vendor of the plaintiff has executed a rectification 4 deed under which the wrong boundaries mentioned in the sale deed as per Ex.P7 have been rectified.
4. The learned counsel for the respondents has filed detailed objections to the application.
5. Arguments of the learned counsel appearing for the parties is heard at length. After going through the records and hearing the arguments on I.A.No.1/2012, following points arise for consideration of this Court.
i) Whether case on hand fit to accord permission for granting permission to withdraw the said suit bearing O.S.No.392/2004 with a liberty to file a fresh suit on the same cause of action?
ii) Whether any interference is call for and to what order and the relief the parties are entitled for?
6. The present application vide I.A.No.1/2012 is filed under Order 23 Rule 1 of CPC. Sub-rule (1) mandates that at any time after the institution of a civil suit the plaintiff may, as against all or any of the defendants, abandon suit or abandon a part of his claim.
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7. Sub-Rule 3 of Order 23 should be read alongwith Rule
1. Sub-rule 3 states that the Court can accord permission if it is satisfied that a suit must fail by reason of a formal defect or that there other sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject matter of a suit or a part of claim.
8. In the present case, the appellant has already suffered a judgment and decree at the hands of the Trial Court and the same is confirmed in the appeal. Admittedly the boundaries mentioned in the schedule appended to the plaint filed in the Trial Court did not tally with the boundaries mentioned in the important document i.e., the sale deed marked as Ex.P7 relied upon by the plaintiff in the Trial Court. Admittedly the plaintiff had relied upon for his title on the basis of Ex.P7 executed by his vendor. Only after the dismissal of the suit and confirmation of the same in the appeal, the plaintiff has chosen to get a rectification deed, under which the boundaries mentioned in the sale deed have been rectified and those boundaries now rectified do tally with the schedule.
9. Though the relief of mandatory injunction had been sought based on Ex.P7, the said suit was a simple suit for 6 injunction. It is not as though the defect so pointed out by the Trial Court was a formal defect, on the basis of which he could later on claim for withdrawal the suit with a liberty to file fresh suit on the same cause of action. The Court has no power apart from Rule 1 of Order 23 to allow a suit to be withdrawn with liberty to file a fresh suit and this power could be exercised subject to the conditions prescribed therein. The court has to discharge the duty mandated under the provision of CPC after taking into consideration all the relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action.
10. Sub-Rule 3 of Order 23 provides that where the Court is satisfied that a suit may fail by reason of 'some formal defect' or that there are 'other sufficient grounds' for allowing the plaintiff to institute a fresh suit for the same subject-matter, the Court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit with a liberty to institute a fresh suit in respect of the same subject-matter on the same cause of action. The words 'formal defect' must be given a wide and liberal meaning, and must be deemed to connote the other kind of defect, 7 which does not affect the merits of the case. A defect so pointed out by the Trial Court and confirmed by the Appellate Court will not come within the purview of 'formal defect' as contemplated under Order 23 Rule 3 of CPC. Even otherwise the said suit was for mere relief of mandatory injunction and cause of action recurs in a suit for injunction. There is no bar for filing any number of non-suit since cause of action will always recur. There is no bar for filing any number of injunction suit, since cause of action will always recur. If the relief of declaration of title had been sought on the basis of the sale deed, it would have been something different.
11. Taking into consideration the dismissal of the suit and confirmation of the same and in view of the glaring discrepancies between the schedule mentioned in the plaint and the schedule mentioned in the sale deed relied upon by the plaintiff, this Court is of the opinion that the said defect is not a formal defect. Hence, this is not a fit case in which discretion should be exercised to permit the plaintiff to withdraw the suit with liberty to file fresh suit in same cause of action.
12. Accordingly, appeal also does not survive in view of the reasons stated above. Notwithstanding the disposal of this appeal 8 for the reasons stated above, the plaintiff will be at liberty to take recourse to law by filing proper suit as may be advised, in the light of the subsequent event of getting the boundaries rectified.
I.A.No.1/12 is dismissed and consequently the appeal stands disposed of.
Parties to bear their own costs.
SD/-
JUDGE.
MBS/JT-