Back
GAUHATI HIGH COURT
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
SMT. SONO BARMAN – Appellant
Versus
AMULYA BARMAN AND 3 ORS. – Respondent
CRP(IO)/265/2018
Formal defects in a suit are not fatal and do not warrant the rejection of an application for withdrawal of the suit with liberty if they can be cured by amendment.
Headnote:
CIVIL PROCEDURE CODE - WITHDRAWAL OF SUIT - FORMAL DEFECTS - [The court held that the formal defects alleged by the petitioner were not substantial enough to warrant the rejection of the application for withdrawal of the suit with liberty.]
Fact of the Case:
The petitioner filed a suit for partition, eviction, and khas possession. However, the suit was dismissed for lack of territorial jurisdiction, misjoinder of parties, and non-service of notice under Section 80 CPC. The petitioner then filed an application under Order XXIII Rule 1 (3) of the CPC for withdrawal of the suit with liberty, which was rejected by the trial court.
Finding of the Court:
The court held that the formal defects alleged by the petitioner were not substantial enough to warrant the rejection of the application for withdrawal of the suit with liberty. The court noted that the suit was properly valued and court fees had been paid, and that the misjoinder of parties and non-service of notice under Section 80 CPC were not fatal defects.
Issues: Whether the formal defects alleged by the petitioner were substantial enough to warrant the rejection of the application for withdrawal of the suit with liberty.
Ratio Decidendi: The court held that the formal defects alleged by the petitioner were not substantial enough to warrant the rejection of the application for withdrawal of the suit with liberty. The court noted that the suit was properly valued and court fees had been paid, and that the misjoinder of parties and non-service of notice under Section 80 CPC were not fatal defects.
Final Decision: The court allowed the petition and set aside the order of the trial court rejecting the application for withdrawal of the suit with liberty.
GAHC010159342018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/265/2018 SMT. SONO BARMAN W/O. SRI PARESH BARMAN, D/O. LATE ABHAYESWAR BARMAN, R/O. VILL. HAPACHARA, P.O. HAPACHARA, DIST. BONGAIGAON, ASSAM.
(REPRESENTED BY HER GUARDIAN AD-LITEM SRI PARESH CHANDRA BARMAN).
VERSUS AMULYA BARMAN AND 3 ORS.
SON OF LATE ABHAYESWAR BARMAN, AND RESIDENT OF VILLAGE DAUKIJHAR, P.O. HAPACHARA, DIST. BONGAIGAON, ASSAM, PIN- 783390
2:ATUL BARMAN SON OF LATE ABHAYESWAR BARMAN AND RESIDENT OF VILLAGE DAUKIJHAR P.O. HAPACHARA DIST. BONGAIGAON ASSAM PIN- 783390
3:NITAI BARMAN ALIAS NITYANANDA BARMAN SON OF LATE ABHAYESWAR BARMAN RESIDENT OF VILLAGE DAUKIJHAR P.O. HAPACHARA DIST. BONGAIGAON ASSAM PIN- 783390
4:SMT. AKALI BARMAN S/O. LATE SUBHASH DAS D/O. LATE ABHAYESWAR BARMAN R/O. VILLAGE SALKOCHA (BHAISH BATHAN)
P.O. TILAPARA (VIA SALKOCHA)
DIST. DHUBRI ASSAM PIN 783348 Advocate for the Petitioner : MR. B J MUKHERJEE Advocate for the Respondent : MR. K M HALOI (R1-R3)
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 05.01.2022 Heard Mr. B. J. Bukherjee, learned counsel appearing on behalf of the petitioner as well as Mr. K. M. Haloi, learned counsel appearing on behalf of the respondent nos. 1 to 3.
This is an application under Article 227 of the Constitution of India challenging order dated 25.05.2018, whereby the application filed by the petitioner who is the plaintiff in the suit under the Order XXIII Rule 1 (3), of the CPC for withdrawal of the suit with liberty, was rejected.
It is a specific case of the petitioner before this Court that the suit which has been filed by the plaintiffs had certain formal defects in the form of
1. Lack of territorial jurisdiction
2. The plaintiff wrongly impleaded Additional DC, Bongaigaon, SDC, Bijni and SDO, Bijni in the suit whereas their presence were not at all required.
3. No notice under Section 80 CPC was served.
4. No prayer for partition, eviction and khas possession was made whereas the title mentioned in the suit whereas nomenclature of the suit was for a decree in right, title and interest and partition, eviction and khas possession
5. The suit was not properly valued and no court fee was paid As regards the first ground i.e. lack of territorial jurisdiction which ought to have been the lack of pecuniary jurisdiction, this Court is of the opinion that there seems to be no lack of peculiar jurisdiction in as much as the suit has been valued at Rs. 70,000/- and there is no mention whatsoever even in the plaint also in the application under Order XXIII Rule 1 (3) why there would be a lack of pecuniary jurisdiction.
As regards the formal defect alleged for wrongly impleading the Additional DC, Bongaigaon, SDC, Bijni and SDO, Bijni and no notice of Section 80 was served. A perusal of the claim goes to show that has been no relief claimed in the suit against the official defendants and they have been only the arrayed as formal parties. It is trite principle of law that when officials of the Govt. are arrayed as formal parties without claiming any relief, the notice under Section 80 is not mandatory.
As regards the formal defect as mentioned that there was no prayer for relief sought for partition, eviction and recovery of khas possession, it is the opinion of this Court that non claiming of said relief, if the petitioner is otherwise entitled from the pleadings of the plaint cannot be construed to be a formal defect within the meaning of Order XXIII Rule 1 (3) (a) or Order XXIII Rule 1 (3) (b) in as much as the plaintiff can very well file an appropriate application seeking amendment to insert the said reliefs, if so advised.
As regards the formal defects stated that the suit was not properly valued and no Court fee has been paid. There is not materials on record to suggest that the suit has not been properly valued and not Court fee has been paid to be a formal defect within meaning of Order XXII Rule 1 (3) (a).
Consequently, the order passed by the Tria
