The single judge bench of the Tripura High Court held that “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties and affirmed the trial court’s decision in granting permission to withdraw the suit under Order XXIII Rule 3(a) holding that lack of pecuniary jurisdiction in the instant case did not affect the merits of the case of either of the parties rather it would fall within the meaning of formal defect.
Brief facts
The factual matrix of the case is that the suit was filed before the Court of Learned Judicial Magistrate, 1st Class by the plaintiff, however, the suit lacks pecuniary jurisdiction. Firstly, the plaintiff filed the petition under Order-VII, Rule-10-A read with Section 151 of CPC for the return of the plaint. Then, the plaintiff filed the application under Order XXIII, Rule-1 of CPC seeking leave of the Court to withdraw the suit with the liberty to file a fresh suit in the appropriate court of law. The learned trial court allowed the aforesaid application. Aggrieved by this, the defendant approached the present civil revision petition.
Contentions of the Petitioner
The Petitioner submitted that in the case of lack of pecuniary jurisdiction, the only relief left before the court was to return the plaint to be presented before the competent court in terms of Order-VII, Rule 10-A of CPC. However, the learned court allowed the withdrawal of the suit with the liberty to file a fresh suit before the appropriate court of law. It was furthermore submitted that the plaintiff after the withdrawal of the suit filed the fresh suit before the learned Civil Judge with an improvised pleading.
Contentions of the Respondent
The Respondent submitted that no vested right was established in the defendant's favor that may be disturbed by the suit's withdrawal, and the defendant is free to initiate a fresh suit in accordance with Order XXIII, Rule 1 read with Rule 3 of CPC. It was furthermore submitted that if the court is satisfied that the suit may fail by reason of some formal defects, then on such terms, the court can grant permission to the plaintiff to withdraw the said suit and institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
Observations of the Court
The Hon’ble Court observed that no vested right had been created in favour of the defendant as the suit had not commenced as neither written statement was filed by the defendant/petitioner herein nor any issues were framed.
It was furthermore observed that a plaintiff may file an application to withdraw his suit or part of his claim against all or any of the defendants at any point following the initiation of the case, in accordance with Order XXIII, Rule (1). Once the application is made before the court, then, the court has to be satisfied (a) the 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. Then, the court can grant the plaintiff permission to withdraw from such suit or such part of the claim with the liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
The court relied upon the judgments titled V. Rajendran and another versus Annasamy Pandian (Dead) through Legal representatives Karphyayani Natchiar, and Sneh Gupta versus Devi Sarup and others.
It was noted that formal defects are those that fall under the purview of the Rules of Procedure and include things such as failure to disclose a cause of action, misjoinder of parties, improper valuation of the suit, inadequate court fees, and confusion regarding the identity of the suit property. It is necessary to define "formal defect" liberally, which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.
Based on these considerations, the court was of the view that lack of pecuniary jurisdiction in the instant case did not affect the merits of the case of either of the parties rather it would fall within the meaning of formal defect as provided under Order XXIII Rule 3(a) and the impugned order doesn’t require any interference.
The decision of the court
With the above direction, the court dismissed the civil revision petition.
Case title: Sri Rathindra Chandra Das and another Vs Sri Barun Chandra Das and another
Coram: Hon’ble Mr. Justice Aparesh Kumar Singh
Case No.: CRP No.59 of 2023
Advocate for the Petitioner: Mr. Soumendu Roy, Advocate, Mr. R.K.P Singh, Advocate.
Advocate for the Respondent: Ms. R. Paul, Advocate.
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