Satish Kumar Mittal, J.
1. Defendant No. 1-petitioner has filed this petition against the Order dated 3.12.2005, passed by Additional District Judge (Ad hoc) Amritsar, whereby at the appellate stage, the plaintiff-respondent No. 1 has been permitted to withdraw the suit under Order 23 Rule 1(3) CPC with permission to file fresh suit on the same cause of action, as there was a formal defect in the suit.
2. In this case, the suit for declaration and possession as owner of the land measuring 130 Kanals 14 Marias was filed by School Beerh Baba Budha Sahib through Manager Gurdwara Beerh Baba Budha Sahib. In the suit, the plaintiff claimed ownership of the suit land on the basis of the mutation sanctioned in its favour on 27.12.1952 on the basis of an oral gift made by one S. Kundan Singh resident of Village Jagatpura. It was alleged that subsequently, in collusion with the defendants, the revenue officer changed the entries in the revenue record, for which they have no right and illegally occupied the suit land. Hence, the suit for declaration and possession was filed.
3. The petitioner contested the said suit by filing the written statement. A specific plea was taken that the suit was not filed by the competent person and the same is not maintainable. It was stated that Beerh Baba Budha Sahib was not legally authorised to file the present suit. On the pleadings of the parties, various issues, including the following two issues, were framed:-
2) Whether Beerh Baba Budha Singh is not legally authorized to file the present suit? OPD
3) Whether the suit is not maintainable in the present form? OPD
4. On issue No. 2, the learned trial Court held that the present suit was not filed by the legally authorised person, while observing as under:-
Counsel for defendant has contended that the school is run by the Managing Committee and the present suit has net been filed by the competent person. On the other hand, learned Counsel for plaintiff has contended that school property is under the control of SGPC and as such present suit has been fried by authorized person. PW1 Narinder Singh is the Manager through whom the present suit has been instituted. This witness has nowhere stated that the School is the property of Gurdwara or school is managed by gurdwara and the plaintiff has not led any evidence to prove this fact that the suit has been filed by competent person, but contrary to this Narinder Singh appearing as PW1 had admitted in his cross-examination that there is sub committee in existence to run school and the suit property is owned by the school. The contention of counsel for plaintiff is that vide resolution dated 28.4.1999 Narinder Pal is authorized to file the present suit, but perusal of the resolution shows that it has been mentioned that Narinder Pal Singh has been authorised to contest the cases for or against Gurdwara Buda Sahib Ji. Perusal of memo of parties of the present case it is clear that present case is not filed by the gurdwara Baba Budha Sahib Ji rather the same has been filed by School Beer Budha Sahib and as such Narinderpal Singh was not legally authorized to file the suit and accordingly the suit is not filed by legally authorized person. This issue is accordingly decided in favour of the defendant and against the plaintiff.
5. While deciding issue No.3, it was held as under:-
Learned Counsel for defendant has contended that the school Beer Baba Buda Sahib is the plaintiff and the suit has been filed against the Managing Committee. As such it is not maintainable. Perusal of the case file shows that present suit has been filed by School Beer Baba Budha Sahib situated at village Thatha, Distt. Amritsar as plaintiff against defendants wherein one of the defendant is Managing Committee School Beer Baba Budha Sahib resident of Thathgarh, District Amritsar through its Manager. As per the fact admitted by PW1 Narinder Singh school is being run by a Sub Committee. As such the sub committee is part and parcel of the school and the school and Managing Committee of school are one and the same. So they cannot be the plaintiff and defendant in a suit at the same time. As such the present suit is not maintainable. This issue is decided accordingly in favour of the defendants and against the plaintiffs.
6. Against the said judgment and decree, the plaintiff filed an appeal. The appellant also filed an application under Order 23 Rule 1(3) read with Section 151 C.P.C. seeking permission to withdraw the appeal and the suit with permission to file fresh suit on the same cause of action on the ground that the suit was filed wrongly in the name of School. So there was a formal defect and on this ground, the suit was also held to be not maintainable. The first appellate court has allowed the said application, subject to payment of Rs.2000/- as costs, while observing as under:-
I have gone through the case law. View taken was that once the suit is decided by trial Court after contest by the parties and findings are recorded under issues arising between them, the suit cannot be allowed to be withdrawn. It was also the view taken by the Hon'ble Supreme Court that permission can be granted if there was no question of any adjudication on merits, in favour of the defendants by trial being nullified by suit withdrawn. I have given my careful consideration to this legal aspect of the case. In the case in hand, as referred to above, view taken by trial Court is that the suit was not filed by legally authorized person. It being so, the suit was not maintainable. In this situation, the lower court could not decide the matter on merits. It is more than clear from the plaint as well as memo of the appeal that the suit has been filed by school Beerh Baba Budha Sahib which is under the management of SGPC, Amritsar through its general attorney. It was also pleaded that school belongs to Gurdwara Baba Budha Sahib. If it was so, then the School is vested in Gurdwara Baba Budha Sahib. Therefore, school itself has no locus standi to file the suit through Manager of Gurdwara. Further from the facts averred in the plaint as well as memo of appeal, it is clear that Gurdwara Baba Budha Sahib is under the management of SGPC. If it is so then SGPC can be owner of the school. Obviously said school itself could not file suit and that too, through Manager of the Gurdwara Baba Budha Sahib. As such the suit was not legally filed as it could be filed by Gurdwara Beerh Baba Budha Sahib or SGPC, Amritsar under the management of which is Gurdwara itself. As such judgment and decree of the lower Court are set aside and Under Section 23 Rule 1(3) C.P.C. R/w 107 C.P.C., application is allowed and suit is dismissed as withdrawn with the liberty to institute fresh in respect of the same subject matter of such suit on making payment of costs of Rs. 2,000/- to the respondent/defendant.
7. Learned Counsel for the petitioner submits that the first appellate Court has wrongly exercised its discretion and permitted the plaintiff-respondent No. l to withdraw the suit at the appellate stage with liberty to file fresh suit in respect of the same subject matter and this order has caused great prejudice to the petitioner. He further submits that the trial court has decided the suit on merits. While deciding issue No. l, it was held that the petitioner is bona fide purchaser and thus, the plaintiff is not entitled to declaration and possession of the suit land. While referring to the decision of the Hon'ble Apex Court in The Executive Officer, Arthanareswarar Temple v. R. Sathyamoorthy and Ors. 1 1999(2) Civil Court Cases 657 and K.S. Bhoopathy and Ors. v. Kokila and Ors. 2 : (2000)5SCC458 , learned Counsel for the petitioner submits that provision in Order 23 Rule 1 C.P.C. is an exception to the common law principle of non-suit. Therefore, on principle an application by the plaintiff under Sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under Sub-rule (1). A permission under Sub-rule (3) for withdrawal of the suit with liberty to file fresh one on the same cause of action can only be granted if the controversy was not adjudicated on merit in favour of the defendant. In case, the matter has been adjudicated on merit, then the permission to withdraw will nullify the finding recorded in favour of the defendant. In such situation, withdrawal of the suit at the appellate stage with permission to file fresh suit should not be allowed.
8. After hearing learned Counsel for the petitioner and going through the judgment of the trial Court and the impugned order of the appellate court. I do not find any substance in this petition. The Hon'ble Apex Court in K.S. Bhoopathy and Ors. v. Kokila and Ors., (supra) has observed as under: -
No doubt, the grant of leave envisaged in Sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of Sub-rule (3) in which two alternatives are provided; first where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of Sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all 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.This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXXIII Rule 1(3) C.P.C. for exercise of the discretionary power in permitting the withrawal of the suit with leave to file a fresh suit on the same cause of action.
From the reading of the aforesaid judgment, it is clear that permission to withdraw suit with liberty to file fresh can be given, when the suit is bound to fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject matter. It has been observed that before permitting the plaintiff to withdraw the suit at the appellate stage, the Court must satisfy about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim and the Court has to exercise that discretion ensuring strict compliance with the conditions prescribed in Order 23 Rule 1(3) C.P.C.
9. In the instant case, even as per the finding recorded by the trial court on issues No.2 and 3, it was found that the suit was not instituted by a competent person and the same was not maintainable. This finding clearly indicates that there was a formal defect in the suit and on that account, the suit is bound to fail. Keeping in view the said factors into consideration, I am of the opinion that the first appellate Court has rightly exercised its discretion in consonance with the provision and permitted the plaintiff to withdraw the suit with liberty to file fresh suit in respect of the same subject matter. I do not find any illegality or infirmity in the impugned order.
10. Dismissed