At, High Court of Gauhati
By, THE HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appearing Parties: S. Bhattacharjee, S.R. Bhattacharjee, S. Dutta, Advocates.
1. Heard Mr. S.R. Bhattacharjee, the learned Senior Counsel assisted by Mr. R. Das, the learned counsel for the petitioner and Mr. S. Dutta, the learned Senior Counsel assisted by Mr. Sidhant Dutta, the learned counsel for the all respondents.
2. The present petitioner is the plaintiff in Title Suit No. 28/2013 in the Court of learned Civil Judge, Dibrugarh filed against the present respondents-defendants seeking the reliefs of declaration and for compensation. Summons were issued to the respondents who are the defendants. At that stage of the suit, the plaintiff-petitioner preferred an application under Order 23 Rule 1 (3) of the Code of Civil Procedure, 1908 (CPC) for withdrawal of the suit with a liberty to file afresh.
3. In order to get the relief to file the suit afresh the plaintiff-petitioner pleaded in the said petition for withdrawal that he failed to show the itemized compensation and as such a formal defect crept into the suit for which he wanted to withdraw the suit alongwith the leave to file it afresh. The present respondents filed their objection thereby objecting against the contentions made in the said petition of the plaintiff-petitioner. The learned court below vide its impugned order dated 31.08.2013 allowed the said application for withdrawal but without the leave for filing the suit afresh. While passing the impugned order the learned Court below held that the law is settled. Withdrawal of suit with leave to file it afresh can be allowed only when it appears to the court that the suit must fail by reason of some formal defects or there are sufficient grounds for allowing the plaintiff to institute a fresh suit. The learned court below also held its findings that no such grounds are specifically averred by the plaintiff-petitioner. Being aggrieved the petitioner is before this court by filing this revision petition.
4. Mr. Bhattacharjee, the learned Senior counsel for the petitioner submits that if at all the court was dissatisfied in showing any formal defects the court below ought to have dismissed the said application under Order 23 of the CPC straightway. But the act of allowing the said application for withdrawal without leave is an exercise on the part of the court below which is beyond its jurisdiction. Accordingly, he sought for setting aside the impugned order.
5. Mr. Dutta, the learned Senior counsel for the respondents, on the other hand, submits that formal defects must be pleaded specifically in any application for withdrawal of suit with a leave to file it afresh. Relying K.S. Bhoopathy & Ors. Vs. Kokila & Ors., (2000) 5 SCC 458, Mr. Dutta submits that formal defects must be examined by the court minutely. Merely an averment that the suit is impregnated with inherent formal defects cannot be a ground to grant the leave by a court. It is further submitted that if the plaintiff-petitioner is allowed to withdraw the suit with leave to file it afresh, the relief as on today is hit by the law of limitation. Moreover, it is submitted that the plaintiff-petitioner failed to show that fresh cause of action accrued to file the suit afresh. Thus, he submits that the learned court below rightly did not grant the leave to file the suit afresh. It is further submitted that the law in this field as on date is that if an application for withdrawal of a suit cannot be granted with leave to file afresh than the petition itself must be dismissed as a whole without compartmentalization of the reliefs claimed by the plaintiff.
6. Considered the submissions of both the learned Senior Counsel. On a plain perusal of the provision of Order 23 of the CPC there is no specified categories of cases under which leave to file a suit afresh can be granted. The court is given discretion under Order 23 Rule 1 (3) of the CPC but before the application of the discretion by the Court it must be satisfied that a suit must fail by reasons of some formal defects or there are sufficient grounds for allowing the plaintiff to withdraw and institute afresh a suit for the subject matter of a suit or part of a claim and only on fulfilling the said condition permission to withdraw the suit must be granted with liberty to institute a fresh suit. The petitioner failed to show any cogent grounds that there are formal defects in the suit but even then the learned court below partly allowed the petition to withdraw the suit but without any leave. The said application of the discretion by the court below cannot be accepted as proper inasmuch as while passing the impugned order the learned court below failed to take note of the provision under Order 2 Rule 2 of the CPC wherein it is specifically stipulated that in respect of any relinquishment of a part of his (plaintiff) claim and intentionally relinquishes any portion of claim the plaintiff shall not afterwards sue in respect of the portion so omitted or relinquished. The learned Court below failed to consider that the leave stipulated under Order 23 Rule (1) sub rule (3) of the CPC is only to protect the plaintiff from the provision of Order 2 Rule 2 of the CPC. The impugned order if allowed to remain would cause the plaintiff-petitioner prejudiced inasmuch as the plaintiff-petitioner shall be debarred from making the claim further in any other suit. Acco
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rdingly, I in my considered opinion is satisfied that this revision petition must be allowed thereby setting aside the impugned order dated 31.08.2013 passed by the learned Civil Judge, Dibrugarh in Title Suit No. 28/2013. 7. The parties in this revision petition shall appear before the Court of learned Civil Judge, Dibrugarh on 07.01.2019 and on production of the order passed today necessary order shall be passed and the Title Suit No. 28/2013 shall be revived and dispose of the same as per the law. With the said direction and observation this revision petition stands allowed.