Withdrawal of a suit can be allowed under Order XXIII Rule 3 of CPC if the defect is formal in nature and such that has no effect on merits of the case


CR No.22/2017
Date of decision: 18.09.2018

Ghulam Nabi Bhat & ors. Vs. Haneefa & others

Coram: Hon’ble Mr Justice Rashid Ali Dar, Judge

For the Petitioner(s): Mr. N. H. Shah, Adv.
For the Respondent(s): Mr. B. A. Misri, Adv.

1) Learned Sub Judge, Baramulla, in pursuance of order passed on 19.04.2017
(shortly referred as impugned order), has permitted the plaintiffs-respondents herein to withdraw the suit with liberty to file fresh one in accordance law. Same was done on an application presented in this behalf wherein, precisely, the following grounds were taken by the plaintiffs-respondents

(a) That the subject matter in dispute is joint, common and unpartitioned and the plaintiffs and defendants being the agnates of Rehman Bhat are entitled to respective shares provided under Muslim Law of inheritance, so that shares asked for by the plaintiffs will be assigned to them as prescribed by Muslim Law;

(b) That whereas the earlier instituted suit, due to wrong counselling has not been mentioned which requires to be cleared by filing a fresh suit for the subject matter in the capacity of agnates of deceased Rehman Bhat;

(c) That due to wrong counselling of advocate, the suit has been filed for injunction instead of partition, declaration and possession, as such, the suit shall fail for this formal defect, therefore, plaintiffs have sufficient cause which warrants that the suit may be permitted to be withdrawn with permission to file fresh suit praying therein assignment of shares prescribed under Muslim Personal Law of inheritance on the basis of civil court decree which has legal sanctity in the eyes of law instead of verbal arguments.

2) Copy of the plaint annexed with the prevent revision petition reflects the plaintiffs-respondents herein having pleaded before the court below as under:

1. That the plaintiffs, defendant No.1 and husband of defendant No.2, namely, Late Shareef ud din are brother and sisters, while as defendant No.3-Nissar Hussain, minor, and Javaid Ahmad, minor, are sons of brother – Shareef ud din Bhat;
2. That the grandfather- Sultan Bhat, left behind his property same was divided between his sons Gani Bhat and Rehman Bhat. This way sons of Gani Bhat had their own share while as sons of Rehman Bhat had their own share. This way the property left behind by Sultan Bhat is divided equally between Gani Bhat and Rehman Bhat. The same is mutated to the sons of Gani Bhat while as the sons of Rehman Bhat, Gh. Nabi Bhat and Shareef ud din Bhat at the back of their sisters mutated the property left behind by their father Rehman Bhat in their names and all the sisters deprived of their right;
3. That Gh. Nabi Bhat and Late Shareef-ud-din having mutated the property left behind by their father-Rehman Bhat depriving the sisters, this fact of deprivation was heard by sisters, daughters of Rehman Bhat, all the four sisters being aggrieved agitated against this fraudulently grab of the property left behind by the Rehman Bhat of which the sisters were in accordance with the Shariyat Act entitled to.
4. That a gathering of relatives and of brothers and sisters was arranged wherein mutation at back was admitted and as a temporary arrangement till the property left behind by the Rehman Bhat is divided according to Shariyat Act, the sisters were given a room in second storey of house left by father Rehman Bhat measuring 12 feet wide, 18 feet in length, on southern side of house as on the northern side of this room defendant no. 2 Nissar is residing with her sons defendants 3 &
4. The lover storey and the third storey of this house is as yet not a maintain one.
5. That in a decision made by this gathering with due consent of all, two rooms to the plaintiff where given in a newly constructed house, in second storey as the rest of the house is occupied by the defendant no. 2 Gh. Nabi Bhat.
6. That again a decision was made with one voice by this gathering of the relatives that out of the landed property a control of land namely Tanga-Bagh situated at Binner link road measuring 11 kanals identified as on the eastern side is mattled road, on the western side house of Wali Mir, on the northern side village- population, on southern side residential houses. This handing over of the plot was that time agreed will be known as inherited landed property left by Rehman Bhat by the sisters.
7. That another portion of land named as Charal-Daji measuring 3 ½ kanals situating in village Janbazpora was handed with possession to all the four sisters left behind by Rehman Bhat till the fully distribution of the land left behind the Rehman Bhat as provided by Shariyat Act. This land being situating in village Janbazpora has its eastern side Khaliq Bhat on western side Majeed Bhat on northern side Rehman Dar and on the southern side Yayah Bhat. The site plan is enclosed showing the land and rooms occupied now by plaintiffs out of their father’s property namely Rehman Bhat.
8. That as was decided and admitted by the gathering, this landed property than handed and given the possession of and the rooms in old house and new house, where given the possession of and handed to all the sisters is till date within the possession and under the use of sisters.
9. That since above a month immediately after the death of husband of defendant no. 2 and father of defendants 2 and 4, the defendants are bent to disturb the possession of plaintiffs, dispossess the plaintiffs from the rooms and landed property then handed to plaintiffs and given control of.
10. That the defendants were repeatedly requested not to dispossess or take the control of these rooms and landed property left behind by their Rehman Bhat but give a deaf ear to this request and are bent to dispossess the plaintiffs.
3) In the suit, the plaintiffs sought the following reliefs:

“In the premises and keeping in view the above set out circumstances it is therefore prayed that the defendants be directed not to disturb the possession of plaintiffs, dispossess the plaintiffs from the rooms and landed property then handed to plaintiffs in an arranged gathering of relatives.”
4) The written statement which has been filed by the other-side termed the suit presented on behalf of the respondents misconceived as according to the defendants, the injunction could not be granted in favour of the plaintiffs as they were not in possession of the suit property.

5) The petitioners herein have termed the approach of the learned trial court as bad on the following grounds:

a) That the impugned order is contrary to law and facts;
b) That the respondents after contesting the suit almost for three years, have come up with an application that they want to withdraw the suit with a liberty to file fresh one on same cause of action. The defendants- petitioners contested the suit, raised points on merits that the property stand settled prior to 28 years back and also suit requires to be dismissed on merits but the ld. trial court without looking to the defence has allowed the application which is totally contrary to law;
c) That the ld. trial court has held it is a formal defect which is not a fact. It is beaten principle of law that court should record satisfaction that on account of some formal defect, the suit is likely to fail. The court has again to record its satisfaction that there are sufficient grounds for allowing the prayer to institute a fresh suit. The expression “formal defect” definitely does not include the defect which deals with the merits of the case but the prayer which respondents/plaintiffs project in the application definitely touches merits of the case as such the ld. trial court was not correct in allowing the petitioner for withdrawal of suit and granting permission for filing fresh suit on the same cause of action;
6) Mr. N. H. Shah, learned counsel for the petitioners while being heard took reliance on the judgment rendered in the case of “Om Parkash v. Krishan Lal” reported in 2001 KLJ 88 and contended that the revision petition requires to be allowed and the order passed by the learned Sub Judge set aside.

7) Mr. Misri, learned counsel appearing for the respondents, however, has taken a preliminary objection with regard to maintainability of the revision petition on the count that the revision was barred in terms of Proviso to Section

115. The application if dismissed in favour of the petitioners herein would not have resulted in termination of the proceedings and so the petition may not lie. He has also taken reliance on the judgments captioned “Ghulam Qadir Wani & Ors. Vs. Shah Mali” reported in 2012 AIR (J&K) 12, “Mohammad Tariq Mir v. Ghulam Qadir Bhat”, 2011 (II) S. L. J. 873 and “Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others”, (2003) 6 SCC 659.

8) While rebutting the contentions raised on behalf of respondents, Mr. N. H. Shah, learned counsel for the petitioners, submitted that it is already settled that even if there may be a bar for exercise of revisional jurisdiction, the Court is not powerless to invoke its supervisory jurisdiction in terms of Section 104 of the Constitution of J&K State read with Article 227 of the Constitution of India. In this regard, he has referred to the judgment of the Hon’ble Apex Court captioned “Col. Anil Kak (Retd) v. Municipal Corporation Indore & ors.” (AIR 2007 SC 1130).

9) Considered the rival arguments.

10) On a plain examination of the impugned order, it is evident that the jurisdiction which is sought to be invoked is barred in terms of Proviso to Section 115 of CPC. The application moved for grant of leave to withdraw the suit and to bring a fresh one, if decided otherwise, would, admittedly, not have terminated the proceeding. Thus the alternative prayer made at bar by the learned counsel for the petitioner for exercise of power under Section 104 of the Constitution of J&K is required to be considered. At this cost of repetition, it required to be said herein that the leave has been granted by the learned trial court for removal of the formal defect. The respondents had stated in the application moved for grant of leave that the suit filed in the form, in which it was pending had been instituted so, due to wrong counselling and for the reasons indicated in the application, grant of leave was warranted. The Court had to examine this prayer in the light of provisions of Order 23 Rule 3 of CPC which enables it to grant the leave in case the suit fails on account of some formal defect or there are sufficient grounds for allowing so.

11) On a review of the judgments of various Courts, it can be easily seen that the courts have been liberal in interpreting the words “formal defect” and “other sufficient grounds”. The rider, however, placed on exercise of powers by the Court is a defect which affects the merits of the case and which may or may not be even fatal to the case, cannot be allowed to be removed.

12) Their Lordships of Hon’ble Apex Court in “Waryam Singh and another v. Amarnath and another” reported in 1954 AIR 215, have referred to the observations made by Harries C. J. in Dalmia Jan Airways Ltd. v. Sukumar Mukherjee (2) that the power vested with the High Court in terms of Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within bounds of their authority and not for correcting mere errors. Nonetheless, there cannot be any dispute that power under Section 103 of the Constitution of J&K or Article 227 of the Constitution of India exercised even suo-moto by the Court and for doing so it may convert a revision petition into a petition under Section 104 of the Constitution of J&K.

13) In “Shalini Shyam Shetty & anr vs. Rajendra Shankar Patil” (2010) 8 SCC 329, the Hon’ble Apex Court while referring to the case of “Laxmikant Revchand Bhojwani and another vs. Pratapsingh Mohansingh Pardeshi” reported in (1995) 6 SCC 576, reminded the High Courts that the power cannot be assumed in terms of Article 227 as an unlimited prerogative to correct all species of hardships of wrong decision. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. Their Lordships also remarked that the jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. It has been also the observation of Their Lordships that the High Court cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it.

14) The judgment referred to by the learned counsel for the petitioners is related with the powers of the Court to grant leave when the plea had been taken that the defendant/petitioner is a licensee and the petitioner had taken an objection that he is not a licensee but is in possession of the property since long and his possession ahs ripen into ownership. The Court came to the conclusion that such a defect, as pointed out for withdrawal of the suit, could well be rectified by seeking an amendment or even without seeking an amendment by claiming framing of an issue.

15) Nonetheless, the fact that the trial in the instant case may have commenced for a substantial period, as pointed out by the petitioners, the prayer made by the respondents for grant of leave, in that backdrop, could not be thrown out without giving a thought to the other aspects of the case. It may also require to be borne in mind that in civil cases, awarding of costs for any act or omission of a particular party is generally treated as panacea.

16) In the instant case, the defendant/petitioners could reasonably be compensated for the delay in having the proceedings concluded expeditiously or for filing the fresh suit after grant of leave. The leave granted by the learned trial court has not the propensity of putting the defendants in an irremediable situation or such inconvenience which cannot be compensated by costs.

17) With these features, I am of the opinion that the power exercised by the learned trial court in grant of leave in favour of the respondents cannot be termed of a nature which is required to be brought to naught by exercise of power under Article 227 of the Constitution of India read with Section 104 of the Constitution of J&K State. Accordingly, the revision petition, being without any merit, is dismissed and order impugned passed by learned Sub Judge, Baramulla, on 19.04.2017, is maintained. The petitioners shall be at liberty to move a formal motion before the learned trial court for granting of reasonable costs subject to which the fresh plaint may be taken on record and the learned trial court, on presentation of such motion, may pass appropriate orders accordingly having in mind the conduct of the parties as referred in the minutes of the proceedings.

18) Copy of the order be sent to the learned trial court for information.

(Rashid Ali Dar) Judge Srinagar 18.09.2018

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