Natabar Majhi and ors. Vs. Bata Majhi and ors. - Court Judgment

S. Panda, J.

1. Challenge in this Civil Revision is to the Order Dated 17.7.2004 passed by the Learned Civil Judge (Senior Division), 2nd Court, Cuttack in Title Suit No. 29/92(FD) rejecting the application of the Petitioners to withdraw the suit with a liberty to bring a fresh suit.

2. The facts of the case relevant for appreciation of the questions raised In this Civil Revision are as follows;

Petitioners being the Plaintiffs filed a suit for partition against the Defendants the present Opposite Parties. The suit was preliminarily decreed ex parte against the said Defendants. The final decree proceeding has also been commenced after acceptance of the Commissioner's report as per the preliminary decree. At that stage the Plaintiff-Petitioners had filed a petition for amendment of the plaint to delete one lot of property from the suit schedule as the said property was wrongfully included in the plaint. The petition for amendment was rejected on 29.1.2004. Plaintiff-Petitioners had also filed a petition under Order 47 Rule 1 read with Section 151 of the Civil Procedure Code with a prayer to review the Judgment and decree passed in the aforesaid suit in which preliminary decree was passed on 3rd November, 1995 on the ground that by mistake self acquired property of Plaintiff No. 1 had been included in suit schedule which they wanted to exclude during final allotment of shares in Court of final decree proceeding. The said petition of the Plaintiffs was rejected by Order Dated 24.11.2003 as the same was devoid of merit and the Plaintiffs did not chose to challenge those orders.

While the matter stood thus, the Plaintiff-Petitioners have filed a petition under Order 23 Rule 1(3) of Civil Procedure Code to withdraw the suit with a leave to file a fresh suit as inadvertently some plots which are exclusive properties recorded in the name of Plaintiffs was wrongly included in the suit schedule and those properties are not liable for partition. They further added that the mistake apparent on record could not be detected as the preliminary decree was passed ex parte. Therefore, they may be permitted to withdraw the suit with a liberty to bring a fresh suit. The Learned Court below rejected the said petition on the ground that the failure to make necessary claim is not a formal defect and inclusion of some self-acquired properties by the Plaintiffs in the original suit and allowing the case to proceed till the Judgment and decree on the same in their favour is not a formal defect. Since the Plaintiff-Petitioners' application for amendment of the plaint to correct the suit schedule property is rejected and petition for review of Judgment also rejected, Petitioners have failed to establish that there were sufficient grounds to allow them to institute a fresh suit.

3. The Learned Counsel appearing for the Petitioners has submitted that the Learned Court below has committed gross error of law in rejecting the application of the Petitioners for withdrawal of the suit with a leave to file a fresh suit.

Order 23 Rule 1 of the Civil Procedure Code makes provisions for withdrawal of suit or abandonment of part of claim. By allowing to withdraw a suit with liberty to file a fresh suit will not cause prejudice to the Defendant. Hence interference of this Court in exercising jurisdiction under Section 115 CPC is warranted.

4. Before proceeding further the relevant portions of the provisions are extracted hereunder;

Order-XXIII Withdrawal and Adjustment of Suits

1. Withdrawal of suit or abandonment of part of claim -

(1) At any time after the institution of a suit, the Plaintiff may as against all or any of the Defendants, abandon his suit or abandon a part of his claim:

Provided that where the Plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of order 32 extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) xxx xxx xxx(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.xxx xxx xxx

5. The Court has no power apart from Rule 1 Order 23 of the C.P.C to allow a suit to be withdrawn with a liberty to file a fresh one and this power should be exercised subject to the conditions prescribed therein. The Court is to act as per the mandate under the provision of-the Code after 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. Sub-rule (1) affirms the qualified right of the Plaintiff to withdraw or abandon a suit. There is no provision in the Code which requires the Court to refuse permission to withdraw a suit or to compel a Plaintiff to proceed with the suit. This is because withdrawal of the suit under Sub-rule (1) is complete as soon as it takes place, and in any case, when the Court is informed of it. That being so, there is no question of a right to revoke such a withdrawal. No order is necessary to effectuate it.

6. The principle underlying under Order 23 Rule 1 is that the law confers no right which a person does not desire. The present Rule which was introduced in place of Old Rule 1 by Amendment Act of 1976 makes a distinction between the absolute withdrawal which is termed as 'abandonment' and withdrawal with the permission of the Court. The permission has to be obtained from the Court if the Plaintiffs choose to file a fresh suit on the same cause of action. This clear distinction is maintained throughout in the substituted Rule by making appropriate changes in the wording of various Sub-Rules of Rule 1 and withdrawal of suits as enacted in the present Rule may be generally stated in two parts.

(a) a Plaintiff can abandon a suit or abandon a part of his claim as a matter of right without permission of the Court, in that case he will be precluded from suing against on the same cause of action.

(b) a Plaintiff may, in the circumstances mentioned in Sub-rule (3), be permitted by the Court to withdraw from a suit with liberty to sue a fresh on the same cause of action. Such liberty being granted by the Court enables the Plaintiff to avoid the bar in Order-11 Rule-2 and Section 11 of the Civil Procedure Code.

7. The provision under Order 23 Rule 1 of the Civil Procedure Code is an exception to a common law principle of non-suit. Therefore, on principle an application by a Plaintiff under Sub-rule (3) cannot be treated at par with an application by him in exercise of the absolute liberty given to him under Sub-rule (1).

8. In the present case, the Plaintiffs have filed a suit for partition and the Defendants have also a right to claim partition and in such a situation Plaintiffs have absolutely no right of withdrawal as the Defendants can be transposed as Plaintiffs and can continue the suit if they feel that the Plaintiffs are not interested to continue the suit. Thus under such a situation Plaintiffs have absolute no right to withdraw the suit under Order 23 Rule 1(3) of the Civil Procedure Code. As per the said provision it is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting such permission for withdrawal by merely stating that grant of permission will not prejudice the Defendants, is not sufficient compliance with the statutory mandate. The legislative intention in the matter of exercise of discretion is clear from the provisions of Sub-rule 3 in which two alternatives as 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) to 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 on the same cause of action. The Court is to discharge the duty mandated under the provision of Code after 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 23 Rule 1 is filed by the Plaintiffs in a belated stage during final decree proceeding after the preliminary decree was passed. Defendants accrue a right by virtue of preliminary decree. To grant leave in that stage would result in giving opportunity to Plaintiffs to avoid the decree against him and seek a fresh adjudication of the controversy on a clean slate. It may also result the Defendants to loose the advantage of adjudication of dispute by the Court.

9. Grant of permission for withdrawal of a suit with leave to a fresh suit may also result in annulment of a right vested with the Defendants and withdrawal of a suit at that stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in the Court and inordinate delay in disposal of the case.

10. The Apex Court in the case of K.S. Bhoopathy and Ors. v. Kokila and Ors. reported in : (2000)5SCC458 held that permission to withdraw suit with leave to file a fresh cannot be taken recourse to where the claim as set out in the original suit is weak and adverse findings have been recorded against the Plaintiff and Court's time already utilized should not be wasted.

11. Keeping in view the above principle, this Court holds that in case permission is granted to the Plaintiff-Petitioners to withdraw the suit with leave to file a fresh suit will cause prejudice to the Defendants as they may lose the benefits of the decision given in their favour by virtue of the preliminary decree. For the reasons discussed above, this Court is not inclined to interfere with the impugned Order Dated 17.7.2004 passed by the Learned Civil Judge (Senior Division) 2nd Court, Cuttack in Title Suit No. 29/92(FD). Accordingly, the Civil Revision is dismissed.

In view of disposal of the Civil Revision, interim order stands vacated. There shall be no order as to costs.