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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Mr. Shree Chandrashekhar, J.
Bhagmani Devi - Appellant
Versus
Kiran Kumari - Respondent
W.P.(C) No. 783 of 2011
Decided On : 10-05-2018
section 80 CPC - Application for Withdrawal of Suit - The court rejected the application under Order 23, Rule 1 and Rule 1(3) CPC r/w section 151 CPC, emphasizing the requirement of notice under section 80 CPC before instituting a suit against the Government or a public officer, and the limitations under Order 23, Rule 1 CPC for moving an application for withdrawal of the suit.
Fact of the Case:
The plaintiffs sought permission to withdraw the suit with permission to institute a fresh suit after evidence of both parties was closed. The court rejected the application, emphasizing the requirement of notice under section 80 CPC and the limitations under Order 23, Rule 1 CPC for moving an application for withdrawal of the suit.
Finding of the Court:
The court found that the application under Order 23, Rule 1(1) CPC was maintainable but not under Order 23, Rule 1(3) CPC, and dismissed the writ petition.
Issues: Application for withdrawal of the suit, requirement of notice under section 80 CPC, limitations under Order 23, Rule 1 CPC
Ratio Decidendi: The court emphasized the requirement of notice under section 80 CPC before instituting a suit against the Government or a public officer, and the limitations under Order 23, Rule 1 CPC for moving an application for withdrawal of the suit.
Final Decision: The writ petition was dismissed.
JUDGMENT
Shree Chandrashekhar, J. - The petitioners, plaintiffs in Title Suit No.11 of 2002, are aggrieved of order dated 02.12.2010 by which their application under Order 23, Rule 1 and Rule 1(3) CPC r/w section 151 CPC has been rejected.
2. section 80 CPC mandates that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered or left at the office of the Government/public officer. Sub-section 2 to section 80 CPC, however, carves out an exception for the urgent and immediate relief against the Government.
3. There is no limitation provided under Order 23, Rule 1 CPC for moving an application for withdrawal of the suit. The only limitation is that the defect on account of which the plaintiff seeks permission of the Court to withdraw the suit must be a formal defect and it should not touch upon the merits of the matter. Obviously, if trial in the suit has commended and the plaintiff has already examined some of his material witnesses, an application under Order 23, Rule 3 CPC is not maintainable.
4. It is an admitted position that the application dated 04.10.2010 was filed by the plaintiffs seeking leave of the Court to withdraw the suit with permission to institute a fresh suit after evidence of both the parties was closed. Plea taken by the petitioners that the plaintiff no.1 is an illiterate lady who had no information about the previous proceedings, would not improve the case of the petitioners inasmuch as, whether a notice under section 80 CPC was sent prior to institution of Title Suit No.11 of 2002 must be known to the plaintiffs before they instituted the suit.
5. At the stage when the suit was posted for arguments, application under Order 23, Rule 1(1) CPC was maintainable but not under Order 23, Rule 1(3) CPC.
6. In the above facts, finding no infirmity in the impugned order dated 02.12.2010, the writ petition is dismissed.
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