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2014 Supreme(Ker) 361
High Court of Kerala
V.K. MOHANAN & ALEXANDER THOMAS, JJ.
K.R. Sugathan
Versus
Jyothi
OP (FC). No. 133 of 2014 (R)
Decided on: 02-07-2014
For the Petitioner:S. Vinod Bhat, Advocate.
For the Respondent:K.R. Radhakrishnan Nair, V. Shylaja, Advocates.
Headnote:
Civil Procedure Code, 1908 - Order XXIII Rule 1(3)(a) - Formal defect - Omission to schedule the property - Findings of - Held, Expression, "formal defect" mentioned in O.XXIII Rule1(3)(a), though not defined in the Code, connotes some defect of form or procedure not affecting the merits of the case, such as want of statutory notice under S.80 of the C.P.C., mis-joinder of parties or of cause of action, non-payment of proper court fee or stamp fee, failure to disclose cause of action, mistake in not seeking proper relief, improper or erroneous valuation of the subject-matter of the suit, defect in the prayer clause, absence of territorial jurisdiction of the court etc - The expression 'formal defect' appearing in O.XXIII R.(1)(3)(a) basically connotes some defect of form or procedure not affecting the merits of the case, such as want of statutory notice under S.80 of C.P.C., mis-joinder of parties etc. as stated earlier hereinabove - Court find that the view taken by the court below that the failure or omission to schedule the property in this case or in regard to necessary pleadings etc., can be remedied by taking resort to amendment of pleadings as envisaged in O.VI R.17 C.P.C., is also reasonable and proper
Alexander Thomas, J.
1. The petitioner herein has filed O.P.No.83/2011 before the Family Court, Thiruvalla, for a declaration that he is entitled to get 'A' Scheduled property, reconveyed and half share in 'B' Scheduled property and for realisation of an amount of Rs.15,00,000/- towards the amounts expended by him for the construction of the building, from the respondent herein (wife). Bereft of all the unnecessary details, the gist of the matter as far as it is relevant for the present controversy raised before us is as follows:
2. The petitioner has filed application under Section 151 of the Code of Civil Procedure praying for leave of the court to withdraw the suit to appropriately institute another suit before the court below. The court below considered the said application (Ext.P3) filed under Section 151 CPC and Order XXIII Rule 3 of the Code of Civil Procedure and opined that the question to be decided is as to whether there is any formal defect in the framing of the case enabling the petitioner to withdraw the same with liberty to file a fresh Original Petition.
3. The court below found in the impugned Ext.P4 order that as to what exactly is the formal defect of the suit/O.P. is not stated in the affidavit filed in support of Ext.P3 herein. The court below held that failure or omission to schedule a property in the case or necessary pleadings in that regard is not a formal defect, which comes within the ambit of Order XXIII Rule 1(3) and that failure or omission to schedule a property in the case as projected by the petitioner in Ext.P3 herein can be incorporated by way of resort to amendment of the pleadings as envisaged under Order VI Rule 7 of the Code of Civil Procedure. The court below also noted that this is a case of the year 2011, which had been pending since then. The court below held that there is no formal defect in the framing of the suit and that the plea or omission to schedule a property as set out in Ext.P3 application is a matter, which should be at best left to resort of remedy for amendment of the pleadings. Accordingly, the court below dismissed Ext.P3 application as per impugned Ext.P4 order rendered on 22.6.2013 in I.A.No.2585/2012 in O.P.No.83/2011. It is this order, viz., Ext 4, that is under challenge before us. The prayer of the petitioner is to set aside the impugned Ext.P4 order and to allow Ext.P3 application.
4. Heard Sri.S.Vinod Bhat, the learned counsel for the petitioner and Sri.K.R.Radhakrishnan Nair, the learned counsel for the respondent.
5. Order XXIII of the Code of Civil Procedure deals with the withdrawal and adjustment of suits. Order XXIII Rule 1(3) reads as follows:
“R.1. Withdrawal of suit or abandonment of part of claim.-(1)
......
(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.”
Order XXII Rule 2 CPC reads as follows:
“R.2. Limitation of law not affected by first suit.- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.”
It is by now well established that where the court is satisfied that a suit must fail by reason of some formal defect, or 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 grant permission to withdraw such suit or such part of the claim with liberty to file a fresh suit in respect of the subject-matter of such suit or such part of the claim on such terms as it thinks fit. The expression,
