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IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
N. CHAUDHURY, J.
Sri Puspendra Nath Borah - Petitioner
Versus
Sri Lalit Chandra Borah - Respondent
Case No: CRP 136 of 2014
Decided on : 28.08.2014
Constitution of India - Article 227 - Code of Civil Procedure - Section 115 - Present petitioner, as plaintiff, instituted Title Suit in Court of learned Civil Judge (Sr. Divn.) No. 1 at Guwahati praying for a decree of Specific Performance of Contract made on 16.06.2007 thereby directing defendant to execute a deed of sale for suit land on receipt of balance consideration of Rs. 41,50,000 - Defendant appeared and submitted written statement whereupon learned Court framed issues and put parties to place their respective evidence - Plaintiff accordingly submitted examination-in-chief in form of affidavit under Order XVIII Rule 4 of Code of Civil Procedure but when case was fixed for cross examination of plaintiff, an application was filed under Order XXIII Rule 1 of Code of Civil Procedure praying for withdrawal of suit with liberty to file afresh - In paragraph 3 of this application, petitioner stated that plaintiff and defendant are own brothers and entire land measuring 3 bighas 3 kathas 11 lechas was purchased by them by different sale deeds in name of plaintiff, defendant and their deceased father without specifying any boundaries of respective share of parties - Held, Formal defect has not been defined in Code but preponderant judicial pronouncement is that a formal defect has to be understood to be a defect of form and not of substance - Any defect of suit such as misjoinder of parties and cause of action, material documents, non-payment of proper stamp erroneous valuation etc - Which do not have any reference to subject matter of the suit have so far been considered to be formal defects. Mr. D Baruah has placed reliance on Full Bench judgment of Hon’ble Bombay High Court in case of Ramrao Bhagwantrao Inamdar and another v. Babu Appanna Samage and others reported in AIR 1940 Bombay 121 (FB) - Full Bench of Hon’ble Bombay High Court in aforesaid judgment has discussed legal history as to incorporation of words ‘formal defect’ and nature and character of power exercised by Court in this regard - It would be profitable to quote relevant observation of Hon’ble Bombay High Court in this regard. (Para 6)Constitution of India - Article 227 - Code of Civil Procedure - Section 115 - Present petitioner, as plaintiff, instituted Title Suit in Court of learned Civil Judge (Sr. Divn.) No. 1 at Guwahati praying for a decree of Specific Performance of Contract made on 16.06.2007 thereby directing defendant to execute a deed of sale for suit land on receipt of balance consideration of Rs. 41,50,000 - Defendant appeared and submitted written statement whereupon learned Court framed issues and put parties to place their respective evidence - Plaintiff accordingly submitted examination-in-chief in form of affidavit under Order XVIII Rule 4 of Code of Civil Procedure but when case was fixed for cross examination of plaintiff, an application was filed under Order XXIII Rule 1 of Code of Civil Procedure praying for withdrawal of suit with liberty to file afresh - In paragraph 3 of this application, petitioner stated that plaintiff and defendant are own brothers and entire land measuring 3 bighas 3 kathas 11 lechas was purchased by them by different sale deeds in name of plaintiff, defendant and their deceased father without specifying any boundaries of respective share of parties - Held, Formal defect has not been defined in Code but preponderant judicial pronouncement is that a formal defect has to be understood to be a defect of form and not of substance - Any defect of suit such as misjoinder of parties and cause of action, material documents, non-payment of proper stamp erroneous valuation etc - Which do not have any reference to subject matter of the suit have so far been considered to be formal defects. Mr. D Baruah has placed reliance on Full Bench judgment of Hon’ble Bombay High Court in case of Ramrao Bhagwantrao Inamdar and another v. Babu Appanna Samage and others reported in AIR 1940 Bombay 121 (FB) - Full Bench of Hon’ble Bombay High Court in aforesaid judgment has discussed legal history as to incorporation of words ‘formal defect’ and nature and character of power exercised by Court in this regard - It would be profitable to quote relevant observation of Hon’ble Bombay High Court in this regard. (Para 6)
In this application under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure, petitioner Puspendra Nath Borah has challenged the order dated 04.03.2014 passed by the learned Civil Judge No. 3, Kamrup at Guwahati thereby refusing withdrawal of Title Suit No. 224/2007 with liberty to re-file.
2. The present petitioner, as plaintiff, instituted Title Suit No. 224/2007 in the Court of learned Civil Judge (Sr. Divn.) No. 1 at Guwahati praying for a decree of Specific Performance of Contract made on 16.06.2007 thereby directing the defendant to execute a deed of sale for suit land on receipt of balance consideration of Rs. 41,50,000/-. The defendant appeared and submitted written statement whereupon the learned Court framed issues and put the parties to place their respective evidence. The plaintiff accordingly submitted examination-in-chief in the form of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure but when the case was fixed for cross examination of the plaintiff, an application was filed under Order XXIII Rule 1 of the Code of Civil Procedure praying for withdrawal of the suit with liberty to file afresh. In paragraph 3 of this application, petitioner stated that the plaintiff and the defendant are own brothers and the entire land measuring 3 bighas 3 kathas 11 lechas was purchased by them by different sale deeds in the name of the plaintiff, the defendant and their deceased father without specifying any boundaries of the respective share of parties. The whole land, therefore, is a single unit with a common boundary. But the plaintiff instituted a suit for Specific Performance of Contract in respect of a plot of land measuring 4 kathas 13 lechas out of 3 bighas 3 kathas 11 lechas and that there is a formal defect in the suit. This, according to the plaintiff, is failure to make prayer for partition and demarcation of land. It is not possible to execute a decree for specific performance in respect of the suit property unless there is a partition between the parties. Inadvertently, no such relief for partition of the said property was made in the present suit and as it came to light only during the cross examination of the witnesses of the plaintiff and this is why necessity for filing of this application had arisen. The plaintiff stated that amendment for incorporation of prayer for partition may change nature and character of the suit. With these averments, plaintiff made a prayer that order be passed granting leave to withdraw the suit with liberty to re-file.
3. This application of the plaintiff was objected by the sole defendant by filing a written objection. In the objection it is stated that on the basis of petition submitted by the plaintiff petitioner there was appointment of an Advocate Commissioner for recording of cross examination of PW1 but even after several dates were passed the same ultimately did not materialise. Defendant alleged that plaintiff witnesses remained absent without steps on a number of dates. But the case of the defendant is that there was no formal defect made by the plaintiff within the meaning of Order XXIII Rule 1 of the Code of Civil Procedure.
4. After hearing the counsel for the parties, the learned Court by order dated 04.03.2014 rejected the application holding that the ground set forth in paragraph 3 of the application of the plaintiff does not reveal any formal defect. It is the finding of the learned Court that the suit is a one for Specific Performance of Contract and for execution of sale deed with respect to 4 kathas 13 lechas. Plaintiff took a specific stand in paragraph 3 of the plaint that suit land measuring 4 kathas 13 lechas is situated at the back side of the remaining land of dag No. 81 patta No. 62 which stands in the name of the defendant. He projected the suit land to be a separate plot of land belonging exclusively to the defendant. He also stated in paragraph 4 of the plaint that the
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