IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. Harilal N.P. Mathai Vs. Dr. Ranjith Peter W.P.(C) No. 11573 of 2010 Decided On : 22-08-2012 Head Note:- Civil Procedure Code, 1908 – Order 23, Rule 1(3) - When the permission is sought for to file a fresh suit at the fag end of the trial, after examining the witnesses, it is incumbent upon the court to meticulously examine (1) whether the alleged lack of pleadings is bona fide (2) whether the lack of pleadings arose from the discovery of a new and important fact, which was not within the knowledge or could not be noticed, despite the exercise of due diligence, at all earlier occasions, before the commencement of trial. If the answer is negative, the grant of liberty for another round of litigation would be apparently unjust and inequitable. Civil Procedure Code, 1908 – Order 23, Rule 1(3) – When an application for withdrawal of the suit with liberty to file a fresh suit comes up after examination of the witnesses, at the fag end of the trial, it requires to be scrutinised meticulously and objectively as to ensure bonafides. Held:- In the instant case, the order granting liberty to file fresh suit appears to be cryptic as well as laconic, and seems to have been passed mechanically without examining the pleadings in the suit and grounds alleged in the application seeking permission. The court below has not considered the question whether the grounds pleaded seeking liberty are satisfactory so as to meet the statutory mandate under Order XXIII Rule 1(3). Judicial satisfaction is one which must be manifested in the Order by means of reasoning. The 'satisfaction' of the court required by law in judicial process is neither an empty formality nor a perfunctory act, bereft of reasonings. But the impugned order is absolutely devoid of reasoning. Thus the impugned order is passed, not in accordance with the statutory requirements under Order XXIII Rule 1 Sub rule (3) and hence liable to be set aside. For Petitioner:
For Respondent:
J U D G M E N T 1. An order passed on an application under order XXIII Rule 1 (3) of the C.P.C., granting permission to withdraw the suit at the fag end of the trial, with liberty to file a fresh suit in respect of the same subject matter, is challenged in this writ petition filed under Article 227 of the Constitution of India. The petitioner herein is the first defendant and the respondent is the sole plaintiff in the original suit. 2. The original suit O.S.No.395/2007, was one for an injunction restraining the defendants from trespassing into the plaint schedule property. It was alleged in the plaint that the plaintiff is the owner in possession of the plaint schedule property by virtue of Sale Deed No.274/1996 and when the plaintiff started construction of a compound wall, the defendants obstructed the same claiming that the plaint schedule property is in possession of the Govt. U.P.School, Thengode, for the last so many years. Defendants 1 to 4 and 6 filed written statement contending that the plaintiffs prior owner Smt.Annie Kurian had no such property when she executed sale deed in favour of the plaintiff. The entire property, which she owned and possessed had already been gifted to her brother Powels Kurian. But it was further stated in the Sale Deed that though entire 2.62 Acres are stated to be gifted, in fact only 1 Acre and 52.5 cent alone was gifted and she is the owner in possession of 62.825 cents of land. Thus the attempt was to grab Govt, land under the cover of the suit. 3. On the basis of the pleadings, the court below framed five issues on 03.10.2008. The 1st issue is whether the suit has been properly valued and requisite court fee was paid. The 2nd issue is whether the plaintiff has title over the plaint schedule property? The 1st issue was taken as a preliminary issue and the learned Sub Judge passed an order finding that the suit is not properly valued and directed the plaintiff to pay court fee under Section 27(a) instead of Section 27(c) of the Court Fees Act. This order was challenged before the High Court in W.P.(C) No.4780/2009. This Court set aside the order that was under challenge and directed the court below to pass appropriate orders on the issue of valuation after deciding the application filed by the plaintiff for deleting the 2nd issue relating to title of the property. Thereafter the court below dismissed the application for deleting the issue relating to title and directed to pay court fee under Section 27(a) of the Court Fees Act. 4. The suit was eventually included in the special list for trial to 20.02.2010. On 24.02.2010, the case was taken up for trial. The plaintiff examined 3 witnesses and marked Exts.A1 to A41. Then the case was adjourned to 27.02.2010 for defendants' evidence. The 1st defendant was examined as DW1 and Exts.B1 to B6 were marked. The evidence was closed on that day and the case was posted for hearing to 01.03.2010. On that day, the plaintiff filed I.A.No. 1869/2010 (Ext.P7) seeking permission of the court to withdraw the suit with liberty to file a fresh suit. Then the case was adjourned to 2.03.2010 for filing counter and hearing. Defendants 1 to 4 and 6 filed Ext.P8 counter affidavit opposing Ext.P7 application. On 02.03.2010, the court below allowed Ext.P7 application seeking permission to withdraw the suit with liberty to file a fresh suit. Ext.P9 order permitting the plaintiff to withdraw the suit with liberty to file a fresh suit is challenged in this writ petition on various grounds. The impugned order Ext.P9 in full length is given below: "Respondent filed objection stating that formal defect stated by the petitioner does not make the failure of suit as there was issues framed. Petitioner contended that the matter is to be prosecuted in a proper manner for the purpose of title. Hence petitioner is allowed to withdraw the suit with the liberty to file fresh suit, with cost of defendants." 5. I heard Sri.P.K.Revi Sanker, the learned counsel for the petitioner and Sri.Saji Mathew, the learned counsel for the respondent. The learned counsel for the petitioner/ defendant submitted that the impugned non speaking order granting liberty to file fresh suit is passed mechanically without application of mind over the pleadings of the case, and the grounds pleaded are not sufficient to grant liberty to file a fresh suit. There are sufficient pleadings in the suit and the relevant documents were produced and marked in evidence to decide the issue of title. Even if there is lack of pleading to establish title that does not amount to a formal defect under Order 23 Rule 1 (3). The court below ought not have granted liberty to institute a fresh suit, when the application has come after closing of evidence in trial and after realising the fact that the suit would be dismissed on merit as the plaintiff could not establish his case as pleaded in the plaint. Thus the learned counsel advanced arguments to substantiate the objections raised in the counter affidavit filed in the original suit. The learned counsel for the petitioner/ defendant cited K.S.Bhoopathy and others Vs. Kokila and other, AIR 2000 SC 2132; Prabhavathi Vs. Kunhathabi Umma, 1981 KLT 438 and Amminikutty Vs. George Abraham, 1987 KHC 174. 6. Per contra, the learned counsel for the respondent/ plaintiff submitted that there are some formal defects in the pleadings and that inherent defects constrained the plaintiff to withdraw the suit with liberty to file a fresh suit. According to the plaintiff, there are no sufficient pleadings in the suit for deciding the issue of title and that amount to a formal defect. Besides, there was another suit with regard to the subject matter of this suit, filed by the P.T.A. of the School and that suit was also scheduled to be tried jointly along with the present suit. But later that suit was withdrawn as not pressed. In the above circumstances, the plaintiff was advised to withdraw the suit with liberty to file fresh suit. Thus the learned counsel made submissions to justify the reasons stated in the application seeking withdrawal with liberty to file fresh suit. The learned counsel for the respondent/ plaintiff cited Harihara Iyer Vs. Varkey, 1981 KHC 142, Bishandayal and Sons Vs. State of Orissa and others, 2001 KHC 1374 and Amina Vs. Kunjubawa, 2005 KHC 1795. 7. I have considered the rival submissions made by the counsel for the petitioner and respondent in the light of the scheme under Order XXIII Rule 1 of the CPC and the decisions cited above. The question to be considered is whether the grant of permission to withdraw the suit with liberty to file fresh suit at the fag end of the trial is justifiable. To put it differently, whether Ext.P9 order is passed in accordance with the statutory requirements under Order XXIII Rule 1(3) of the C.P.C ?. It is apposite and profitable to refer relevant provisions under Order XXIII Rule 1(3), which reads as below:- Order XXIII Rule 1 (1). xxx xxx xxx xxx (2). xxx xxx xxx xxx (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. 8. Going by the section, it could be seen that the scheme under Order XXIII Rule 1(3) of the Civil Procedure Code is an exception to the common law principle of non-suit. The general principle that conveyed through the provisions of Civil Procedure Code like, Section 11, Order II Rule 2, Order IX Rule 9 etc. is that 'there must be a finality for every cause and litigations thereon', and it cannot be allowed to continue as an experimental exercise or a never ending process. The cardinal principle is that a person shall not be vexed twice and the object is to prevent multiplicity of suits; whereas Order XXIII Rule 1(3) operates as an exception to the above general principle. 9. An application under Sub rule (3) of Order XXIII Rule 1 cannot be treated on a par with application under Sub rule (1). No permission is required under Sub rule (1) and it gives an unqualified right to plaintiff except in the case of set off or counter claim; but he shall be liable for the cost and shall be precluded from instituting a fresh suit. Per contra, permission of the court is required under Sub rule (3), as the plaintiff wants liberty for another round of litigation on the same subject matter. The object of Order XXIII Rule 1(3) was considered and well settled by this Court and the Supreme Court by various decisions on different angles. In the decision in Prabhavathi Vs. Kunhathabi Umma, 1981 KLT 438 this court held as follows :- "The object of R.1 is no doubt not to enable a party to cover up all his omissions and failures and attempt a second suit on the same cause of action in order to avoid the result of all his failures; but the rule is equally intended to ensure that a fair trial of a suit on merits is not shut out because of a bona fide error or omission which cannot be cured in the same proceedings". 10. In the decision reported in Sarguga Transport Service Vs. State Transport Tribunal Gwallior, AIR 1987 SC 88, the Supreme Court held that "the principle underlying in Sub rule 3 of Order XXIII Rule 1 of the Code of Civil Procedure is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito Beneficium Non datur. "The law confers upon a man no rights or benefits which he does not desire"". Thus to get permission of the court to withdraw the suit with liberty to file fresh suit, plaintiff should establish either the ground under clause (a) or under Clause (b) of Order 23 Rule I (3). 11. As regards the nature and extent of jurisdiction, the Apex court in K.S.Bhoopathy's case (supra), held as follows :- "No doubt, the grant of leave envisaged in sub-r.(3) of R.1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-r.(3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied 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. Clause (b) of sub-r.(3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action". (Emphasis supplied) 12. Whether failure to produce evidence at the trial and the hope that the plaintiff may be able to produce more evidence in fresh suit would come under sufficient grounds required under Rule 1(3)(b)? In the decision reported in Mary Vs. Annamma, 2008 (1) KLT 630, this court held that:- "A party cannot be permitted to protract the litigation by withdrawing the suit with permission to institute a fresh suit where the ingredients of cl.(a) or (b) of Sub r.3 of R.1 of O.23 are not made out. The object of the rule is not to enable the plaintiff, after he has failed to establish his case, by adducing requisite evidence to have a further opportunity to file a fresh suit to re-agitate the matter so as to prejudice the other side. If such a thing is permitted, there will be no end to any litigation". 13. In the decision reported in Neelakanta Pillai Vs. Madhava Kurup, 2007 (2) KLT 340 this court held that 'the object of sub-r.(3) of R.1 is to prevent multiplicity of proceedings and to avoid dismissal of a claim on the ground of an objection regarding formal defect or any other ground which affects the maintainability of the suit. Sub-r.(3) is not intended for permitting a plaintiff to withdraw one suit and institute any suit as he likes'. 14. What is the consequent effect of granting permission to withdraw from suit with liberty to file a fresh suit? It places the parties in the same position as they would have been, had the suit not been instituted at all. In short where the suit is allowed to be withdrawn, it should be regarded as having never been brought. Therefore, for the exercise of discretionary power, the court should apply its mind to the facts of the case and ground pleaded for liberty to file fresh suit with proper care and caution so as to ensure strict compliance with grounds prescribed in Order XXIII Rule 1(3) of the C.P.C. Before granting leave the court must have appraised entire pleadings to find out bonafides of the withdrawal of suit. 15. Now I may consider the impugned order in view of the case law discussed above. Here, the permission to file a fresh suit is sought for on the ground of alleged lack of pleadings to decide the issue of title and according to the plaintiff it is a formal defect coming under Order XXIII Rule 1(3)(a). Then the question that arises is what are the formal defects? There have been some defects which occur inspite of due diligence and care and could not be noticed. All defects do not come within the orbit of Order XXIII Rule 1(3)(a). The formal defects contemplated under the above Rule mean such defects which are unconnected with the merits and would necessarily lead to the failure of the suit. This Court in the decision reported in Prabhavathi's case (Supra) laid down that '"Formal defect' in the context can only mean a defect unconnected with the merits. xxx xxx xxx xxx xxx xxx it is clear that the legislative intention behind clause (a) is to cover one class of suits which "must fail" for reasons other than those affecting the merits of a case. Any formal defect is not sufficient for attracting clause (a); the defect must be one which in the opinion of the court must necessarily lead to the failure of the suit". In the instant case, the lack of sufficient pleadings to substantiate title is the main ground projected in the application for withdrawal. Certainly, a feeling of lack of pleadings of the plaintiff, after evaluating the evidence adduced by the defendants, at the fag end of the trial is a matter connected with merits of the case and it cannot be a formal defect contemplated under Order XXIII Rule 1(3) (a). Then the question is whether the lack of pleadings can be a 'sufficient ground' contemplated under Rule 1(3) (b) of Order XXIII? I am of the opinion that it depends upon the bonafides of the alleged lack of pleadings and circumstance under which the lack of pleadings comes to the notice of the plaintiff. It is to be borne in mind that lack of pleadings and evidence are commonly matters which are not at fault of the defendants. So, certainly a permission to unnecessarily drag in the defendants to another round of litigation would cause gross injustice and hardship to him. If the lack of pleadings is one inherent in the plaint itself and was continuing unmindfully despite due application of mind thereon, at the fag end, it cannot be taken as a sufficient ground under clause (b) of Sub rule (3) because plaintiff could have resorted to remedies under Order VI Rule 17 to cure the defects in pleadings by means of amendments. The object of Order VI Rule 17 is to give an opportunity to determine real question in controversy and to prevent multiplicity of suits. 16. On the other hand, when the permission is sought for to file a fresh suit at the fag end of the trial, after examining the witnesses, it is incumbent upon the court to meticulously examine (1) whether the alleged lack of pleadings is bona fide (2) whether the lack of pleadings arose from the discovery of a new and important fact, which was not within the knowledge or could not be noticed, despite the exercise of due diligence, at all earlier occasions, before the commencement of trial. If the answer is negative, the grant of liberty for another round of litigation would be apparently unjust and inequitable. 17. Similarly if the lack of pleadings comes up to the notice of the plaintiff consequent to a subsequent event, having fundamental impact over the matter in issue, happened at a later stage of the suit and real question in controversy can be determined only by a fresh suit, grant of liberty to file fresh suit is justifiable, even at the end of the trial. 18. The learned counsel for the respondent submitted that the plaintiff wants to issue notice under Section 80 of C.P.C against Govt. so as to seek relief against Govt. also and such a situation also constrained him to seek liberty to file fresh suit. He counsel cited a decision in Bishandayal and Sons Vs. State of Orissa and others, 2001 KHC 1374 also. But I am not inclined to accept this argument at this stage as this contention was not raised as a ground in Ext.P7 application. 19. To sum up, the grant of liberty to file a fresh suit for the same cause of action can never be an incentive attached with the withdrawal, for encouraging the withdrawal of suit, so as to reduce pendency in statistics. It is to be borne in mind that for those who involved in litigation, it would result in wastage of time, cost of money and sufferings. When an application for withdrawal of the suit with liberty to file a fresh suit comes up after examination of the witnesses, at the fag end of the trial, it requires to be scrutinised meticulously and objectively as to ensure bonafides. 20. In the instant case, the order granting liberty to file fresh suit appears to be cryptic as well as laconic, and seems to have been passed mechanically without examining the pleadings in the suit and grounds alleged in the application seeking permission. The court below has not considered the question whether the grounds pleaded seeking liberty are satisfactory so as to meet the statutory mandate under Order XXIII Rule 1(3). Judicial satisfaction is one which must be manifested in the Order by means of reasoning. The 'satisfaction' of the court required by law in judicial process is neither an empty formality nor a perfunctory act, bereft of reasonings. But the impugned order is absolutely devoid of reasoning. Thus the impugned order is passed, not in accordance with the statutory requirements under Order XXIII Rule 1 Sub rule (3) and hence liable to be set aside. 21. The prayer under Sub rule (3) of Order XXIII Rule 1 is a composite prayer which cannot be allowed partly in view of the decision in Harihara Iyer Vs. Varkey, 1981 KHC 142. I am constrained to remand the case back to trial court for fresh consideration. In the above decision, this court held that the preponderance of judicial pronouncement appears to be that it is not competent for the Court to divide a composite prayer into two, and to allow one of them, rejecting the other; either the Court should allow the application to withdraw from the suit with permission to institute a fresh suit for the subject matter or reject the application for withdrawal from the suit, requiring the plaintiff to prosecute the proceedings till its termination. 22. In the above circumstances, I set aside the impugned order and remand the case back to the lower court for fresh consideration and disposal of I.A. No. 1869/2010 in accordance with law and in the light of the decisions quoted above within a period of three months from the date of receipt of a copy of this judgment. The parties shall appear before the court below on 29/9/2012. Notice will be issued to the parties in the original suit, who are not made a party in this petition, also after appearance of the parties in this writ petition. The writ petition is disposed of as above. |
