Bhushan Vs. Bala Prasad - Court Judgment

Excerpt:

- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - --(3) where the court is satisfied,-(a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or..........with the civil suit no. 50-a/03 for declaration of the sale deed dated 6-8-1994 as null and void and inoperative.4. i have gone through the impugned order. order 23 rule 1(3) of cpc reads as under:order xxiii rule 1. withdrawal of suit or abandonment of part of claim.-- (3) where the court is satisfied,-- (a) that a suit must fail by reason of some formal defect, or(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. 5. if we read the above order it is clear that court may on such terms as it thinks fit grant the permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. it is clear that the court has no power to allow a suit to be withdrawn without liberty to file a fresh one and the power has to be exercised subject to condition prescribed.....

Judgment:

ORDER

S.C. Sinho, J.

1. Heard.

2. This is a revision petition filed by original plaintiff (revisionist) against the order dated 25-7-2003 passed by Civil Judge, Class II, Maihar holding that the plaintiff's Civil Suit No. 50-A/03 stands withdrawn without liberty to file a fresh suit. In view of plaintiffs Interlocutory Application under Order 23 Rule 1(3) of CPC has been partly allowed. The original suit was filed by the plaintiff for declaration of the sale-deed dated 6-8-1994 as null and void and permanent injunction.

3. Learned Advocate of the applicant has argued that learned Civil Judge should have allowed or disallowed his application. The result of this order would be that he is deprived of the justice for which he has filed a civil suit. The learned Counsel for the applicant has requested that he wants to further proceed with the Civil Suit No. 50-A/03 for declaration of the sale deed dated 6-8-1994 as null and void and inoperative.

4. I have gone through the impugned order. Order 23 Rule 1(3) of CPC reads as under:

Order XXIII Rule 1. Withdrawal of suit or abandonment of part of claim.--

(3) Where the Court is satisfied,--

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

5. If we read the above order it is clear that Court may on such terms as it thinks fit grant the permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. It is clear that the Court has no power to allow a suit to be withdrawn without liberty to file a fresh one and the power has to be exercised subject to condition prescribed therein. If relief is granted to the plaintiff to withdraw from the suit with liberty to bring a fresh suit order must not be one dismissing the suit. Reliance is placed in Shaikh A. Kadar and Ors. v. Jose Camilo Gomes and Ors. reported in AIR 1982 Goa Daman and Diu, Devidas Tulsiram Brijwani v. The Commissioner Poona Municipal Corporation : AIR1974Bom39 , Khivaraj Chhagniram Zavar and Anr. v. Shivshankar Basappa Lingashetty and Anr. AIR 1974 Bombay 4 and Hans Raj Akrot v. State of Himachal Pradesh . The Court cannot split the prayer for withdrawal of the suit with permission to file a fresh suit. It is therefore, settled position to allow that application if it is made to withdraw the suit with permission to file a fresh one. It is not open to the Court to split up the prayer made by the plaintiff by allowing the withdrawal of the suit and refusing liberty to institute a fresh suit in respect of the same subject matter. The Court cannot split the prayer and allow only to withdraw the suit.

6. In view of above discussion, this revision application is allowed. The impugned order is consequently set aside. Learned Trial Court will proceed with the Civil Suit No. 50-A/03 in accordance to law. Applicant will appear before Trial Court on 18-7-2007. There shall be no order as to costs.

C.C. as per rules.