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IN THE HIGH COURT OF CALCUTTA
Biswajit Basu, J.
Archana Roy – Appellant
Versus
Dipanjan Bhattacharjee – Respondent
Civil Order No. 3616 of 2018
Decided On : 08-05-2019
Ejectment Suit - Withdrawal of Suit - Order 23 Rule 1 - Code of Civil Procedure
Fact of the Case:
The petitioner filed a suit for eviction of the opposite party from the suit property. The trial judge impounded an agreement for being insufficiently stamped and the petitioner sought to withdraw the suit with liberty to file a fresh suit on the same subject matter. The trial judge refused to grant permission for a fresh suit.
Finding of the Court:
The court held that the plaintiff has an unqualified right to abandon the suit or part of the claim against the defendants. The defendant can object to the plaintiff's prayer for permission to file a fresh suit. The court must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit.
Issues: The main issue was whether the plaintiff should be granted permission to file a fresh suit on the same subject matter after withdrawing the initial suit.
Ratio Decidendi: The court must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit. The provision of sub-rule 3 of Order 23 Rule 1 of the Code provides two alternatives, and the expression 'sufficient grounds' should not be restricted to formal defects.
Final Decision: The order impugned was modified by granting liberty to the plaintiff to institute a fresh suit on the same subject matter of the initial suit. The liberty granted by the trial judge to withdraw the suit subject to payment of cost was affirmed.
Certainly. Here are the key points derived from the provided legal document:
The plaintiff has an unqualified right to abandon the suit or part of the claim against the defendants. However, the court must be satisfied that there are sufficient grounds for permitting the plaintiff to institute a fresh suit on the same subject matter (!) (!) .
The right of a plaintiff to withdraw a suit is subject to the court being satisfied about the existence of valid grounds, which may include formal defects or other sufficient reasons that justify starting a new suit (!) (!) .
When a plaintiff seeks permission to withdraw a suit and file a new one on the same cause of action, the court must evaluate whether there are sufficient grounds for such permission. The grounds should not be restricted solely to formal defects; they may include other substantial reasons (!) (!) .
The expression "sufficient grounds" in this context can be interpreted broadly, encompassing various defects or reasons that justify the withdrawal and re-filing of a suit, provided they do not prejudice the rights of the defendant (!) (!) .
The court is obliged to ensure that granting permission to withdraw and re-file does not adversely affect the legitimate rights of the defendant. The investigation into whether the grounds are sufficient is case-specific and aims to prevent abuse of the legal process (!) (!) .
Formal defects, such as procedural errors or defects of form that do not affect the merits of the case, are considered valid grounds for withdrawal and re-filing. Such defects should be given a liberal interpretation to facilitate justice (!) (!) .
The court's satisfaction regarding the sufficiency of grounds is a prerequisite for granting permission to withdraw and re-file. This ensures that the process is not misused and that the rights of all parties are protected (!) (!) .
The right to withdraw a suit can be exercised at any stage, but the court's decision to permit re-filing depends on whether the grounds are adequate and whether such permission would prejudice the defendant's rights (!) (!) .
When an application for withdrawal is made with a request for liberty to re-file, the court must consider the entire context and the reasons provided. If the grounds are sufficient, the court is empowered to grant permission, possibly with conditions such as costs (!) .
The order of the court may be modified to allow the plaintiff to institute a new suit on the same subject matter, provided the court is satisfied about the grounds and that the rights of the parties are adequately protected (!) .
Overall, the legal framework emphasizes the importance of balancing the plaintiff's right to withdraw and re-file against the need to prevent abuse and to safeguard the defendant's legitimate interests (!) (!) .
Please let me know if you need further analysis or assistance.
Biswajit Basu, J.
The instant revisional application under Article 227 of the Constitution of India is directed against the order dated September 25, 2018 passed by the 9th Court, Civil Judge (Senior Division) at Alipore in Ejectment Suit No. 132 of 2016.
2. The petitioner filed the suit for eviction of the opposite party from the suit property alleging that the opposite party was put into possession of the suit property on the basis of the agreement styled as "leave and licence agreement" for a period stipulated in the said agreement. On expiry of the period fixed by the initial agreement subsequent agreements of same nature was entered into by and between the petitioner and the opposite party. The opposite party on expiry of the period fixed by last of such agreements refused to vacate the suit property and is continuing the possession over it as a trespasser.
3. The learned Trial Judge in course of the hearing of the said suit impounded one of the said agreements holding that the said agreement is not sufficiently stamped and send it to the collector for assessment of proper stamp duty payable on the said document.
4. The petitioner in the suit filed an application under sub-rule 3 of Order 23 Rule 1 of the Code of Civil Procedure praying that she may be permitted to withdraw the said suit with a liberty to file a fresh suit on the self-same subject matter of the said suit (hereinafter referred to as the 'said application' in short).
5. The petitioner in the said application contended, inter alia, that the learned Trial Judge during the pendency of the said suit observed that the agreement which is executed between the parties is in the nature of an unregistered lease and as such the agreement under the nomenclature of tenancy agreement executed between the parties in the year 2009 cannot be relied upon on the ground of insufficient stamp duty and impounded the said document. The plaintiff in view of the said circumstances has been advised by her learned counsel that as the proceeding was instituted in a defective manner, insufficient to sustain the present plaint, it would not be prudent on the part of the plaintiff to continue with the present proceeding as chances of getting any relief in the present proceeding is very bleak.
6. The learned Trial Judge by the order impugned has permitted the petitioner to withdraw the suit but refused to grant liberty to file a fresh suit on the self-same subject matter and cause of action of the said suit.
7. The learned advocate for the petitioner submits that the petitioner is seeking eviction of the opposite party from the suit property describing him as a trespasser but the defendant in his written statement has taken the defence of a premises tenant and the learned Trial Judge has already treated the agreement of tenancy under which the defendant came into possession of the suit property as an unregistered deed of lease, under the said circumstances the petitioner realised that the suit will fail for want of a valid notice terminating the tenancy of the opposite party in respect of the suit property created under the said agreements or otherwise and accordingly filed the said application but the learned Trial Judge has refused to grant the permission to the petitioner to file a fresh suit on the self-same subject matter of the said suit, erroneously holding that the said application does not speak about the 'formal defect'.
8. He further submits that the Court under sub-rule 3 of Order 23 Rule 1 of the Code, if satisfied that either of the grounds contemplated under clause (a) or clause (b) of the said provision of the Code exists shall allow a plaintiff to withdraw the suit and to file a fresh one on the self-same subject matter of the suit allowed to be so withdrawn or part of it's claim but the prayer of the plaintiff under the said provision of the Code being composite cannot be split up. In support of his such contention he places reliance on the decision of the Hon'ble Divi
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