Withdrawal of Suit--Trial Court, while granting permission to file a fresh suit, was required to give specific finding that there was a 'formal defect' in plaint

RAMENDRA JAIN, J.

Through this revision petition under Article 227 of the Constitution of India, challenge has been laid to order dated 12.02.2014 (Annexure P-1) of the trial Court, permitting the respondents-plaintiff to withdraw their suit with permission to file fresh one, allowing their application under Order 23 Rule 1(3) CPC.

2. Briefly stated, ancestors of respondents No.1 to 14, namely, Hans Raj and Kidar Nath, filed a suit on 19.11.1997 against the petitioner and his brother Jiwan Lal for declaration and permanent injunction to the effect that they were owner in possession of 2/3rd share in shop bearing No.2959/3, situated in Ban Bazar, Patiala, shown in red colour, which was on rent with respondent No.7. The petitioner and his brother be restrained from dispossessing them from the suit property. Upon notice, petitioner and his brother filed written statement on 02.09.1998. When the plaintiffs failed to file their replication despite availing sufficient opportunities, their right to file the same was rejected vide order dated 20.09.1999. Thereafter, suit was dismissed in default vide order dated 21.08.2003, which upon application of the ancestors of the contesting respondents, was restored on 30.08.2013. Issues were re-framed on 31.01.2014. Immediately thereafter, contesting respondents-plaintiff moved application under Order 23 Rule 1(3) CPC for withdrawal of their suit with permission to file fresh one. Despite strong contest by the petitioner, the said application of the respondents-plaintiff was allowed by the trial Court vide impugned order permitting the contesting respondents-plaintiff to withdraw their suit with liberty to file fresh one.

3. Learned counsel for the petitioner inter alia contends that great prejudice has been caused to the petitioner on account of the impugned order, granting liberty to the contesting respondents-plaintiff to file fresh suit in view of the fact that petitioner was made to suffer and litigate for around 17 years for a frivolous suit of the contesting respondents-plaintiff. The trial Court failed to appreciate that earlier suit of the contesting respondents-plaintiff was dismissed for non-prosecution and even after its restoration and recasting of issues, the contesting respondents-plaintiff, instead of leading any evidence to prove their case, moved application under Order 23 Rule 1(3) CPC for withdrawal of their suit with mala fide intentions on the false and frivolous ground of wrong mentioning of genealogy of the parties in para 1 of the plaint. The trial Court also failed to appreciate that the ground, on which contesting respondents-plaintiff prayed for withdrawal of suit, was not specifically mentioned in their application under Order 23 Rule 1(3) CPC. Therefore, the trial Court ought not to have permitted the contesting respondents-plaintiff to withdraw their suit with permission to file fresh one. In support of his argument, he has placed reliance upon the judgments in Chander and others v. Gulzari Lal and others, 1979 PLJ 584 (P&H) and Baljit Singh v. Jot Ram, 1994 PLJ 570 (P&H).

4. On the other hand, learned counsel for the contesting respondents-plaintiff, vehemently opposing the above submissions of learned counsel for the petitioner and pleading the legality and validity of the impugned order, contends that relationship in between the parties was wrongly described in para 1 of the plaint, which had material bearing on the merit of the case. The above mistake falls under the definition of “formal defect” under Order 23 Rule 1(3) CPC. Therefore, the trial Court rightly allowing their application under the said provision has validly permitted them to file fresh suit. In support of his arguments, learned counsel for the contesting respondents placing reliance on the judgments of Andhra Pradesh High Court in Lakshmanna v. Chinna Govindappagari, 1998 (3) ALD 110 and Gujarat High Court in Arvindkumar Ratiall Punatar v. Yogeshkumar Harilal Shah, 1999 AIHC 3464 further