Kashinath S/O Ninu Badhe vs Vishnu S/O Narayan Kolte
2017 Latest Caselaw 1516 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                 CIVIL REVISION APPLICATION NO.44 OF 2015


Kashinath s/o Ninu Badhe 
Age 65 years, Occ: Cultivator, 
R/o Advihir, Tq. Motala, 
Dist. Buldana.                                                   ... Applicant. 

-vs- 

Vishnu s/o Narayan Kolte 
Age 57 years, Occ. Cultivator 
R/o Advihir, Tq. Motala, 
Dist. Buldana                                                    ... Non-applicant. 


Shri A. J. Thakkar, Advocate for applicant. 
Shri N. B Kalwaghe, Advocate for non-applicant. 

                                        CORAM  : A.S.CHANDURKAR, J. 

ARGUMENTS WERE HEARD ON : March 30, 2017 JUDGMENT PRONOUNCED ON : April 07, 2017

Judgment :

An order passed by the trial Court under provisions of Order-XXIII

Rule 1(3) of the Code of Civil Procedure, 1908 (for short, the Code)

permitting the non-applicant to withdraw the suit filed by him with liberty to

file a fresh suit on the same cause of action is the subject matter of challenge

at the instance of the original defendant.

2. The non-applicant claims to be the owner of property No.61.

According to him, for proceeding towards the government road on the

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Western side, there is a 4 feet wide and 7 feet long road. According to him

property No.61 was purchased by his grandfather on 25/05/1938. The 4 feet

wide road was in the use of the non-applicant as easement of prescription.

The applicant who was owner of the adjoining plot sought to make certain

construction which had the effect of affecting the easementary right of the

non-applicant. On that cause of action the non-applicant filed RCS No.107-

09 praying that it be declared that the construction made by the applicant on

the portion of the road was illegal and it be directed to be demolished. A

further declaration as to the easementary right by way of prescription of the

non-applicant came to be prayed for.

3. The applicant filed his written statement and denied the claim of

non-applicant. He specifically pleaded that two other persons were also

using the raod in question since long and hence they were necessary parties.

It was further pleaded that the map filed by the non-applicant to indicate

alleged encroachment was not prepared as per scale. Similarly the

construction in question was completed in September 2007 by taking prior

permission of the Grampanchayat. On these counts it was prayed that the

suit was liable to be dismissed.

4. The trial Court framed issues on 08/06/2010 after which the non-

applicant-plaintiff filed his affidavit-in-lieu of evidence. This affidavit was

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filed on 22/11/2012. Thereafter on 24/10/2013 the non-applicant filed an

application under provisions of Order XXIII Rule 1(3) of the Code stating

therein that the map filed on record was prepared by the non-applicant

himself and hence it was not prepared as per scale. He further stated that

there was no prayer made with regard to the absence of any permission

being granted by the Grampanchayat for the alleged construction. Similarly

there was no prayer made seeking declaration that the alleged way did not

belong to the applicant. It was stated that on these counts, the suit was

likely to fail and therefore permission was sought to withdraw the suit and

file a fresh suit on the same cause of action. This application was opposed by

the applicant on the ground that granting the same would cause prejudice to

the case of the applicant and whatever rights had accrued in his favour

would be taken away.

The trial Court by its order dated 07/01/2015 held that the map

filed on record was not prepared as per scale and that the area under

encroachment has not been indicated. The necessary prayers with regard to

ownership rights had also not been made and hence a case was made to

permit the non-applicant to withdraw the suit and file a separate suit on the

same cause of action. Being aggrieved by the aforesaid order, the defendant

has filed the present civil revision application.

5. Shri A. J. Thakkar, learned counsel for the applicant submitted

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that the trial Court was not justified in granting the prayer made by the non-

applicant. He submitted that the grounds on which permission to withdraw

the suit was sought did not constitute any "formal defect" and that the

grounds made out touched the merits of the dispute. According to him the

written statement was filed on 09/03/2010 raising specific defences and

after almost three years, the non-applicant had sought permission to

withdraw the suit. He submitted that the issues were already framed and the

non-applicant had also filed his affidavit-in-lieu of evidence. Relying upon

the decision of Honourable Supreme Court in K. S. Bhoopathy and ors. vs.

Kokila and ors. AIR 2000 SC 2132 and the judgment of learned Single

Judge in Rajaram Jairam Raut vs. Baliram Laxman Raut 2006(2) Mh.L.J.

693 it was submitted that such permission should not have been granted by

the trial Court merely by observing that grant of such permission would not

prejudice the defendant.

6. Shri N. B. Kalwaghe, learned counsel for the non-applicant

supported the impugned order. He submitted that absence of a proper map

and failure to make necessary prayers in the plaint were formal defects and

therefore the trial Court was justified in allowing the application moved by

the non-applicant. As the suit was for removal of encroachment and proper

map according to scale was necessary, absence of these basic requirements

would result in dismissal of the suit and hence it was urged that the trial

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Court did not commit any error while passing the impugned order. He also

referred to the pleadings of the parties to support his stand. Learned

counsel placed reliance upon the decisions in Indana International Ltd. vs.

Santana Miguel Fernandes (2007) 5 BomCR 804, Vilas Shriram Mahalle

and anr. vs. Rajdhaniprasad Rahinprasad Tiwari 2005(1) Mh.L.J. 596,

Kancherla Sarveshwara Rao and ors. vs. Kancherla Veerraju and ors. AIR

1957 AP 303 and Dalbir Kaur vs. Jagir Kaur and anr. 2002 AIHC 2954.

It was therefore submitted that there was no reason to interfere with the

order passed by the trial Court.

7. I have heard the learned counsel for the parties at length and I

have given due consideration to their respective submissions. Under

provisions of Order-XXIII Rule 1(3) of the Code liberty to withdraw the suit

as filed with further liberty to institute a fresh suit in respect of the subject

matter of the earlier suit can be granted if the Court is satisfied that the suit

must fail on account of some formal defect or that there are sufficient

grounds for allowing the plaintiff to institute a fresh suit. These provisions

were considered by the Full Bench of the Bombay High Court in Ramrao

Bhagwantrao Inamdar and anr. vs. Babu Appanna Samage and ors. AIR

1940 Bombay 121 wherein it was held that the grounds mentioned in Rule

1(2)(b) must be analogous with the grounds mentioned in Rule 1(2)(a) of

Order XXIII of the Code. In Tarachand Bapuchand v. Gaibihaji Ahmed

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Bagwan AIR 1956 Bombay 632 it was held that failure to make a particular

claim and failure to implead parties with regard to such claim cannot be

regarded as formal defects that are fatal to the suit. The liberty to withdraw

the suit under provisions of Order XXIII Rule 1(3) of the Code in such

situation cannot be granted. The Honourable Supreme Court in K. S.

Bhoopathy and ors. (supra) has held that merely by holding that grant of

permission to withdraw the suit would not prejudice the defendant would

not amount to compliance with the statutory mandate and permission cannot

be granted to withdraw the suit keeping only that aspect in mind. It is

therefore clear that the formal defect should be one that does not affect the

merits of the case. It should not be a defect of substance.

8. In the present case the non-applicant in the suit filed by him has

pleaded that the work of construction undertaken by the applicant resulted

in affecting the easement by prescription and that such construction was

illegal. In the written statement the applicant came up with the defence

that certain parties who were necessary parties to the suit were not

impleaded. The map relied upon by the non-applicant was not according to

scale. It is to be noted that the written statement was filed on 09/03/2010

after which the trial Court framed issues on 08/06/2010 and thereafter the

non-applicant filed his affidavit-in-lieu of evidence on 22/11/2012. It is at

this stage that the permission to withdraw the suit was sought by the non-

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applicant.     According   to   him   the   suit   was   liable   to   be   dismissed   on   the

ground that the map placed on record was not according scale, there was no

prayer made with regard to seeking declaration that no permission had been

obtained from the Gram Panchayat while making the construction and

further declaration that the applicant was not the owner of the disputed

portion was not prayed for. The trial Court while considering said prayer

found that the reasons furnished by the non-applicant for withdrawing the

suit were sufficient and thus allowed the application. In so far as production

of valid map as per scale is concerned, the same can always be brought on

record by obtaining permission of the trial Court. However in so far as

absence of seeking reliefs with regard to declaration as to the absence of

permission from the Gram Pachayat and ownership of the disputed road are

concerned, the same cannot be treated to be formal defects. Absence of

these prayers definitely affects the merits of the case and as held in

Tarachand Bapuchand (supra) even if the provisions of Order XXIII Rule

1(2)(b) of the Code are construed liberally, the defect in pleadings or

absence of parties cannot be regarded as formal defects. These would be

defects of substance and not defects of form. As observed in Rajaram

Jairam Raut (supra) these defects can be attempted to be rectified by

amending the plaint.

9. The decisions relied upon by the learned counsel for the non-

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applicant of the Andhra Pradesh High Court and Punjab & Haryana High

Court in these circumstances cannot assist the case of the non-applicant.

Similarly the ratio of the decision in Vilas Shriram Mahalle (supra) also

does not assist the case of the non-applicant. In Indana International Ltd.

(supra), the suit was filed against dead persons. Hence, ratio of said decision

is not applicable to the case in hand.

10. In view of aforesaid position, I find that the trial Court committed

an error while allowing the application moved by the non-applicant below

Exhibit-44. Mere absence of prejudice to the applicant cannot be the

consideration. The reasons assigned for said purpose are contrary to the law

laid down by this Court in the decisions referred to herein above.

11. In the result, the order passed by the trial Court below Exhibit-44

is quashed and set aside. The application below Exhibit-44 stands dismissed.

It is open for the non-applicant to seek amendment in the plaint and if such

request is made the same shall be considered by the trial Court within the

parameters of Order-VI Rule 17 of the Code uninfluenced by any

observations made in this order.

Civil revision application is therefore allowed with no order as to costs.

JUDGE Asmita