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2017 Supreme(HP) 1275
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mr. Sanjay Karol, ACJ.
Charan Dass - Appellant
Versus
Ram Saroop - Respondent
CMPMO No. 330 of 2016
Decided On : 08-09-2017
Mr. Dheeraj Vashisht, Advocate, for the Petitioner; Mr. Bhuvnesh Sharma, Advocate, for the Respondent
The discretionary power to allow withdrawal of a suit and the need to establish a formal defect or sufficient grounds under Order 23 Rule 1(3) CPC.
Headnote:
Withdrawal of Suit - Code of Civil Procedure - Order 23 Rule 1, Section 151 - [Order 23 Rule 1, Section 151] - The court dismissed the application seeking permission to withdraw the suit with liberty to file afresh due to the non-filing of the site plan. The court cited the principles under Order 23 Rule 1(3) CPC, emphasizing the discretionary power to allow withdrawal of a suit and the need to establish a formal defect or sufficient grounds. The court also highlighted the duty of the court to prevent the abuse of the process of the court and the interpretation of 'formal defect' and 'sufficient grounds'. The court concluded that the non-filing of the site plan is not a defect that cannot be cured and that the plaintiff had chosen not to take resort to the remedy provided by the Code of Civil Procedure. The court emphasized the need to avoid multiplicity of litigation and considered the plaintiff's request as lacking specific grounds. The court found no reason to interfere with the order passed by the Court below, ultimately dismissing the petition.
Fact of the Case:
The plaintiff filed an application seeking permission to withdraw the suit with liberty to file afresh due to the non-filing of the site plan. The application was dismissed by the Civil Judge.
Finding of the Court:
The Court found no ground to interfere with the order, emphasizing the discretionary power to allow withdrawal of a suit and the need to establish a formal defect or sufficient grounds. The Court concluded that the non-filing of the site plan is not a defect that cannot be cured and that the plaintiff had chosen not to take resort to the remedy provided by the Code of Civil Procedure. The Court emphasized the need to avoid multiplicity of litigation and considered the plaintiff's request as lacking specific grounds.
Issues: The main issue was whether the plaintiff should be granted permission to withdraw the suit with liberty to file afresh due to the non-filing of the site plan.
Ratio Decidendi: The court emphasized the discretionary power to allow withdrawal of a suit and the need to establish a formal defect or sufficient grounds. The court also highlighted the duty of the court to prevent the abuse of the process of the court and the interpretation of 'formal defect' and 'sufficient grounds'. The court concluded that the non-filing of the site plan is not a defect that cannot be cured and that the plaintiff had chosen not to take resort to the remedy provided by the Code of Civil Procedure. The court emphasized the need to avoid multiplicity of litigation and considered the plaintiff's request as lacking specific grounds.
Final Decision: The petition was dismissed, and the court directed the parties to appear before the Court below.
JUDGMENT
Sanjay Karol, ACJ. - Petitioner-plaintiff Charan Dass (hereinafter referred to as plaintiff) filed an application, seeking permission to withdraw the suit, with liberty to file afresh, pointing out the only defect of not having filed the site plan. Such application, filed under Order 23 Rule 1, read with Section 151 of the Code of Civil Procedure, stands dismissed by the Civil Judge (Senior Divison), Una, District Una, Himachal Pradesh, in terms of impugned order dated 7.6.2016.
2. Having heard learned counsel for the parties, as also perused the record, this Court, in exercise of its power, under Article 227 of the Constitution of India, finds no ground to interfere. The order cannot be said to be perverse, erroneous or illegal, in any manner.
3. The Apex Court, in V. Rajendran and another vs. Annasamy Pandian (Dead) through Legal Representatives Iarthyayani Natchiar, (2017) 5 SCC 63, has observed as under:
"9. As per Order XXIII Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order XXIII Rule 1 (3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b) that is, existence of a "formal defect" or "sufficient grounds". The principle under Order XXIII Rule 1 (3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action.
10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors, (2000) 5 SCC 458, it has been held that it is the duty of the Court to be satisfied about the existence of "formal defect" or "sufficient grounds" before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the "formal defect" or "sufficient grounds", such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the "formal defect" or "sufficient grounds". "Formal defect" is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, mis-joinder of parties, failure to disclose a cause of action etc. "Formal defect" must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.
11. In terms of Order XXIII Rule 1(3) (b) where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit, the Court may permit the plaintiff to withdraw the suit. In interpretation of the word "sufficient grounds", there are two views: One view is that these grounds in clause (b) must be "ejusdem generis" with those in clause (a), that is, it must be of the same nature as the ground in clause (a) that is formal defect or at least analogous to them; and the other view was that the words "other sufficient grounds" in clause(b) should be read independent of the words a ''formal defect'' and clause (a). Court has been given a wider discretion to allow withdrawal from suit in the interest of justice in cases where such a prayer
