Saroj Ramesh Jadhav And Another vs Kongaree Veera Reddy
2016 Latest Caselaw 5214 Bom

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD


                CIVIL REVISION APPLICATION NO. 185 OF 2014




                                                                                  
                                                          
    1.     Sow. Saroj w/o Ramesh Jadhav,
           Age : 52 years, Occu. Household,
           R/o Shrikarpa Apartment,
           Behind Parijat Mangal Karalaya,




                                                         
           Latur, Tq. & Dist. Latur

    2.     Ramesh s/o Kishanrao Jadhav,
           Age : 59 years, Occu. Agri.,                           PETITIONERS
           R/o as above.                                       (Ori.Defendants)




                                                
           VERSUS                 
    Kongaree Veera Reddy,
    Age : 50 years, Occu. Business,
                                 
    R/o Budhoda, Tq. Ausa,                                        RESPONDENT
    District Latur                                             (Ori. Plaintiff)

                              ----
       

    Mr. Prashant K. Deshmukh, Advocate for the Petitioners
    Mr. G.L. Deshpande, Advocate for the Respondent
    



                              ----


                                            CORAM :   SANGITRAO S. PATIL, J.





                                        RESERVED ON  :     2nd SEPTEMBER, 2016

                                        PRONOUNCED ON :    8th SEPTEMBER, 2016
            





    JUDGMENT :

The original defendants in Regular Civil Suit

No. 22 of 2004 have preferred this application,

challenging the legality and correctness of the order

2 cra185-2014

dated 1st January, 2014, passed in Regular Civil Appeal

No. 32 of 2010 by the learned Ad-hoc District Judge-1,

Latur whereby the respondent (original plaintiff) has

been permitted to withdraw the said suit with liberty to

institute a fresh suit in respect of the same subject

matter.

2. The respondent instituted the above numbered

Regular Civil Suit in the Court of Civil Judge, Junior

Division, Ausa, seeking declaration of his title to the

suit property, admeasuring 11 gunthas out of the land

block No. 19/B/1, situate at village Budhoda, Taluka

Ausa and further sought perpetual injunction restraining

the applicants from disturbing his possession thereon.

The suit came to be dismissed by the learned Civil

Judge, Junior Division, Ausa vide judgment and decree

dated 9th September, 2009, mainly on the ground that the

suit property, in fact, was belonging to a firm namely

Pandurang Vitthal Firm Pvt. Ltd., which was registered

under the Bombay Public Trusts Act. However, the said

Firm had not passed any resolution, authorising the

respondent to institute the said suit and prosecute it.

The respondent preferred Regular Civil Appeal No. 32 of

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2010 in the District Court at Latur against the judgment

and decree passed by the Trial Court. During pendency

of that appeal, the respondent filed an application

(Exh-15) under Order XXIII Rule 3 (a) and (b) of the

Code of Civil Procedure ("the Code", for short), seeking

permission to withdraw the suit with liberty to

institute a fresh suit in respect of the same subject-

matter by setting aside the impugned judgment and

decree. The learned Ad-hoc District Judge-1, Latur

allowed that application as per the impugned order.

3. The learned counsel for the applicants submits

that once the suit was dismissed by the Trial Court,

certain rights were created in favour of the applicants.

Consequently, the first appellate court was not

justified in setting aside the judgment and decree

passed by the Trial Court and allowing the respondent to

withdraw the suit with liberty to file a fresh suit in

respect of the same subject-matter. In support of his

contention, he relied on the judgment in M.B.

Development Corporation V. Manilal Patel & Co. 2001

(Supp.) Bom. C.R. 801. He, therefore, submits that the

impugned order may be set aside and the order passed by

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the Trial Court may be restored.

4. As against this, the learned counsel for the

respondent submits that the appeal being in continuation

of the suit, the judgment and decree passed by the Trial

Court had not become final due to pendency of R.C.A. No.

32/2010. It was, therefore, open to the respondent to

withdraw the suit with liberty to file a fresh suit on

the ground that because of the technical defect in

drafting the plaint, it was liable to be dismissed. He

submits that the first appellate court has rightly set

aside the judgment and decree passed by the Trial Court

and allowed the application filed by the respondent

under Order XXIII Rule 3 (a) and (b) of the Code by

granting him permission to withdraw the suit with

liberty to file a fresh suit in respect of the same

subject-matter. In support of his contention, he cited

the judgments in the cases of (i) Ratan Lal and

another V. Mohammad Hamidulla Khan AIR 1921 Allahabad

65, (ii) Suraj Pal Singh V. Gharam Singh and others AIR

1973 Allahabad 466 and (iii) Mahendra Uttamrao Kadam and

others V. Kacchi Properties 2011 (7) ALL M.R. 386.

5 cra185-2014

5. The provisions of Order XXIII Rule (3) of the

Code read as under :-

(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."

6. There is no dispute about the proposition that

the appeal is continuation of the suit and the decree

passed by the Trial Court would not become final until

the appeal is decided. As such, the application for

withdrawal of the suit can very well be filed during

pendency of the appeal. In the case of Suraj Pal Singh

(supra), the suit was dismissed and during the pendency

of the appeal, the learned counsel for the

plaintiff/appellant made an application for withdrawal

of the suit. It was observed by the Allahabad High

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Court that the decree of dismissal of the suit by itself

does not confer any right on any party to the suit. In

view of these observations, the contention of the

learned counsel for the applicants herein that because

of the dismissal of the suit by the Trial Court, certain

rights have been accrued in favour of the applicants,

cannot be accepted.

7. Relying on the judgment in case of M.B.

Development Corporation (supra), the learned counsel for

the applicants submits that the respondent filed a suit

on behalf of a Firm which is not registered. As such,

the defect in the suit was not formal but was

substantive. Therefore, the suit ought to have been

dismissed and accordingly has rightly been dismissed by

the Trial Court. He submits that the suit cannot be

allowed to be withdrawn with liberty to file a fresh

suit when there is substantive defect therein.

8. As against this, the learned counsel for the

respondent relied on the judgment of the Bombay High

Court in the case of Mahendra uttamrao Kadam (supra),

wherein the suit presented by the plaintiff, which was

7 cra185-2014

an unregistered firm, being not maintainable in view of

Section 69 of the Partnership Act, considering the said

defect as a formal defect, the plaintiff was permitted

to withdraw the suit with liberty to file fresh suit on

the same cause of action. In the said judgment, in

paragraph 9, there is reference of the judgment in the

case of M/s Haldiram Bhujiawala V. Anand Kumar Deepak

Kumar 2000 (3) SCC 250, wherein in the similar

circumstances, it was held that if the firm is not

registered on the date of suit and the suit is to

enforce a right arising out of a contract with the third

party-defendant in the course of its business, then it

will be open to the plaintiff to seek withdrawal of the

plaint with leave and file a fresh suit after

registration of the firm, subject of course to the law

of limitation. It is further observed that this is so

even if the suit is dismissed for a formal defect.

9. In the present case, the suit was filed by the

respondent on behalf of a registered trust namely

Pandurang Vitthal Firm Private Limited. He ought to

have been authorised by the said trust to institute a

8 cra185-2014

suit on its behalf. No such authorisation was produced

by him with the plaint. Therefore, it was held that the

respondent was not competent to file and prosecute the

suit. In my view, this is clearly a formal defect in

the suit. The valuable rights of the parties cannot be

allowed to be defeated on account of such formal

defects. Consequently, in view of the judgments cited

by the learned counsel for the respondent, which are

fully applicable to the facts of the present case, I am

of the opinion that the learned Ad-hoc District Judge-1,

Latur rightly allowed the application (Exh-15) and

rightly permitted the respondent to withdraw the suit

and file a fresh suit in respect of the same subject-

matter. The judgment in the case of M.B. Development

Corporation (supra), cited on behalf of the applicants,

in circumstances of the case, cannot be made applicable

to the facts of the present case.

10. In the above circumstances, I hold that the

Civil Revision Application, being sans substance, is

liable to be dismissed. Hence, the order :-

                                             9                              cra185-2014

                                      O R D E R

The Civil Revision Application is dismissed. No

costs.

Sd/-

[SANGITRAO S. PATIL]

JUDGE

npj/cra185-2014