Baban Ramchandra Shukla And ... vs Shyam Keshav Shukla And Others
2017 Latest Caselaw 3006 Bom

 WP 1551.16.odt                               1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO.1551 OF 2016

 1] Baban Ramchandra Shukla,
    Aged 72 years, Occupation -
    Legal Practitioner.

 2] Nalini w/o Vinayakrao Joshi,
    Aged about 76 years,
    Occupation-Housewife.

 3] Malti w/o Jagannathrao Tembhurne,
    Aged 65 years, Occ : Housewife,
    All presently R/o.29/2, Dongre
    Lay Out, Near Abhyankar Nagar
    Park, Nagpur-440010. On RA..                                PETITIONERS


                               .. VERSUS ..


 1]     Shyam Keshav Shukla,
        Aged 62 years, Occ. Retired,
        R/o. D 11, Amrapali Society,
        Opp. MMI Hospital, Jagdalpur Road,
        Near Pachpedhi Naka,
        Post & Dist. Raipur (Chhatisgarh),
        Pin 492001.

 2]     Wasudeo Keshav Shukla,
        Aged 55 years, Occ : Service,
        R/o. C 06, Amrapali Society,
        Opp. MMI Hospital, Jagdalpur Road,
        Near Panchpedhi Naka,
        Post & Dist. Raipur (Chhatisgarh),
        Pin 492001.

 3]     Sou. Shailaja Sadashiv Kherdekar,
        Aged 58 years, Occ. Retired,
        R/o. House Nos.117, Tikarapara,
        Post & Distt. Raipur (Chhatisgarh),
        Pin 492001.


::: Uploaded on - 15/06/2017                      ::: Downloaded on - 16/06/2017 00:19:21 :::
  WP 1551.16.odt                             2



 4]     Parag Arvind Shukla,
        Aged 54 years, Occ. Service,
        R/o. Opposite Rajeshwar Convent
        Renuka Nagar, Dabki Road,
        Old Akola City, Post and Dist. Akola
        Pin-444001.

 5]     Sharad Arvind Shukla,
        Aged 51 years, Occ. Service,
        R/o. Ashirwad, Madhav Nagar,
        Near Guest House, Post-Telhara,
        Dist. Akola-444108. On RA..                          RESPONDENTS



                   ..........
 Shri S.R. Deshpande, Advocate for petitioners,
 Shri Dharmendra Mahajan, Advocate for respondents.
                   ..........


                                CORAM : KUM. INDIRA JAIN, J.

DATED : JUNE 09, 2017.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard

finally with the consent of learned counsel for the parties.

2] This petition takes an exception to order dated

28.10.2015 passed below Exh.36 by the learned Civil Judge,

Senior Division, Malkapur in Regular Civil Suit No.13/2014

(new) 47/2013 (old).

3] The facts giving rise to the petition may be stated

in nutshell as under :

(a) Respondents are the original plaintiffs.

They filed Regular Civil Suit No.47/2013 before

Civil Judge, Junior Division, Nandura. The suit was

for cancellation of will dated 14.7.1997, partition

and possession, declaration and permanent

prohibitory injunction and mandatory injunction.

(b) During pendency of suit, an application

was moved under Section 24 of the Code of Civil

Procedure (for short, 'CPC') before the learned

District Judge, Buldhana for transfer of other civil

suits arising out of same subject matter.

Vide order dated 10.6.2014, learned Principal

District Judge, Buldhana withdrawn and transfer

regular civil suits from other courts to the court of

Civil Judge, Senior Division, Malkapur for disposal

according to law.

(c) On 30.9.2015, plaintiffs moved an

application (Exh.36) for grant of permission to

withdraw RCS No.13/2014 with liberty to file a

fresh suit under the provisions of Order XXIII Rule

1(3) r/w Section 151 of CPC.

4] The application was strongly objected by

defendants. On hearing the parties, trial court, vide order

dated 28.10.2015 allowed the application and RCS

No.13/2014 was allowed to be withdrawn with liberty to file

a fresh suit. It is this order which is the subject matter of

present writ petition.

5] Heard Shri S.R. Deshpande, learned counsel for

petitioners and Shri Dharmendra Mahajan, learned counsel

for respondents.

6] Shri Deshpande, learned counsel for petitioners,

submitted that plaintiffs could not show formal defect in the

plaint and change in number of suit property could have

been brought on record by way of an amendment. The

submission is that plea of alleged fraud could have been

also raised by way of an amendment and it was not proper

on the part of the trial court to allow the withdrawal of suit

with liberty to file a fresh suit. In support of submissions,

learned counsel for petitioners placed reliance on the

following judgments :

(i) K.S. Bhoopathy and others .vs.

Kokila and others.

[AIR 2000 SC 2132]

(ii) Lala Punjushet .vs. Motiram Budhu [AIR 1926 Bombay 315]

(iii) Ramrao Bhagwantrao Inamdar and another .vs. Babu Appanna Samage and others.

[AIR 1940 Bombay 121]

(iv) Thadi Konda Veeraswami .vs.

                               Thullum Peda    Lakshmudu and
                               others [AIR 1951 Madras 715]

               (v)             Abdul Ghafoor .vs. Abdul Rahman
                               [AIR (38) 1951 Allahabad 845]

               (vi)            Tarachand    Bapuchand  .vs.
                               Gaibihaji Ahmed Bagwan.
                               [AIR 1956 Bombay 632]

               (vii)           Radha Krishna and another .vs.
                               The State of Rajasthan and
                               others [AIR 1977 Rajasthan 131]

               (viii)          Duryodhan Jena .vs. Satyabadi
                               Samal and others.
                               [AIR 1986 Orissa 58]

               (ix)            Duraikannu and others .vs.
                               Malayammal [AIR 2004 NOC 285
                               (Madras)

               (x)             Rajaram s/o Jairam Raut .vs.
                               Baliram s/o Laxman Raut
                               [2006 (2) Mh.L.J. 693]


 7]             Per      contra,   learned       counsel     for     respondents

submitted that defects were such that they could not be

cured by way of moving an application for amendment and,

therefore, plaintiffs were constrained to file an application

for withdrawal of suit with liberty to file a fresh suit. The

learned counsel relied upon the decision of the Hon'ble

Supreme Court in Rajendra Prasad Gupta .vs. Prakash

Chandra Mishra and others, (2011) 2 SCC 705 and

submitted that the court had discretion to allow the

withdrawal of suit and considering the facts which were

brought on record, court had rightly allowed the withdrawal

of suit with liberty under Order XXIII Rule 1 (3) of CPC.

8] Before adverting to the facts of case in hand,

it would be apt to refer here the provisions of withdrawal of

suit under Order XXIII Rule 1 (3), CPC.

1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim :

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) ........

(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.

9] So far as law regarding withdrawal of suit is

concerned, this court in case of Rajaram Raut (supra) has

relied upon the decision of the Hon'ble Supreme Court and

observed that in the absence of fatal defects withdrawal of

suit is not permissible as amendment is the proper remedy

available to plaintiffs.

10] In the present case, it can be seen from averments

in application (Exh.36) that plaintiffs were to bring

subsequent development on record. According to them,

they had discovered some important documents in respect

of alteration of will by respondent no.1. It is also submitted

that there was change in number of suit property. The

defects, as pointed out by plaintiffs, were not fatal so far as

form of suit is concerned. Plaintiffs could have filed

applications for amendment to bring additional pleadings

seeking additional reliefs in the suit. It appears that instead

of moving amendment application, they filed application for

withdrawal of suit with liberty to file a fresh.

11] It is apparent from impugned order that trial court

had exercised the jurisdiction not available to it by

permitting the plaintiffs to withdraw suit with liberty to file a

fresh on the same cause of action. The impugned order

therefore suffers from jurisdictional error. An interference is

thus warranted in writ jurisdiction. Hence, the following

order :

ORDER

(i) Writ Petition No.1551/2016 is allowed.

(ii) Impugned order dated 28.10.2015 passed below

Exh.36 in Regular Civil Suit No.13/2014 by the learned Civil

Judge, Senior Division, Malkapur is quashed and set aside.

(iii) Regular Civil Suit No.13/2014 is restored to the file

of Civil Judge, Senior Division, Malkapur for disposal

according to law.

 (iv)           No order to costs.

 (v)            Rule is made absolute in above terms.



                                             (Kum. Indira Jain, J.)
 Gulande, PA