Jharkhand High Court
(I) Soniya Devi Wife Of Late Raj Kumar ... vs Ram Naresh Rajak on 7 December, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1321 of 2016
1 (i) Soniya Devi Wife of Late Raj Kumar Baitha
(ii) Ritesh Kumar
(iii) Pankaj Kumar
(iv) Manisha Kumar D/o Late Raj Kumar Baitha
All resident of village Satbarwa, P.O. Satbarwa, P.S. Daltonganj, District
Palamau.
(v) Kumari Anjali W/o Bhupendra Kumar, Resident of village+ P.O.
Nabinagar, P.S. Nabinagar, Disrict Aurangabad (Bihar)
(vi) Pratima Devi, W/o Mahendra Kumar Rajak, resident of village
Babinagar, P.O. & P.S. Nabinagar, District Aurangabad (Bihar).
(vii) Naha Kumari w/o Sunil Kumar resident of village Manika, P.O. &
P.S. Manika, District-Latehar
...... Petitioners
Versus
1. Ram Naresh Rajak
2. Suresh Rajak
Both son of Ranresh Baitha
3. Vijay Kumar Rajak, son of Late Ram Blash Baitha
All resident of Satbarwa, P.O. Satbarwa, P.S. Daltonganj,
District Palamau ......Respondents
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For the Petitioners : Mr. Rajeev Kumar, Advocate
Mr. Anil Kumar, Advocate
Mr. Ram Lakhan Yadav, Advocate
For the Respondents: Mr. Ajay Kumar Pathak, Advocate
Mr. Dilip Kumar Prasad, Advocate
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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JUDGMENT
C.A.V. On 05.10.2023 Pronounced On: 07.12.2023
.....
1. I have heard the arguments on both the parties and perused the case
records.
2. The present writ petition has been filed for quashing the judgment
dated 18.04.2015 passed by District Judge-V, Palmau at Daltonganj
passed in Misc. Appeal No. 10 of 2012 by which appeal preferred against
the order dated 31.08.2012 passed in Misc Case No. 13/2011 has been
dismissed.
3. Present petition reminds the dictum of Hon'ble Supreme Court in the
case of Konkan Trading Company Versus Suresh Govind Kamat
Tarkar & ors. reported in (1986) 2 SCC 424 as under:-
Has Justice become the lip aim of courts instead of their life aim? It
is a fact that only the spelling of the word "justice" is remembered and
the content of the concept is forgotten? Were it not so, would a court in
its professed anxiety to do justice, dismiss a suit as incompetent on the
ground that a sum of Rs. 100 order to be paid as cost whilst granting
leave to withdraw the earlier suit with liberty to file a fresh suit was
deposited "after the institution of a fresh suit and not before the
institution thereof".
4. In the instant case original title suit no. 214 of 2002 was instituted by
the plaintiffs/petitioners wherein defendants/respondents appeared and
filed their written statement and issues were also settled. The case was
fixed for plaintiffs evidence. At this juncture the plaintiffs filed an
application under order XXIII Rule 1 (3) CPC to withdraw the suit with
liberty to file a fresh suit because there was some formal defects and even
the amendment application under Order VI Rule 17 CPC was dismissed.
The said application was allowed subject to payment of cost Rs. 1,000/-
to the defendants. However, plaintiffs did not pay the cost, therefore, on
application of defendants the suit was recalled for hearing vide order
dated 14.07.2009 and the case proceeded ex-parte against the plaintiffs.
5. The petitioners were not informed about the recall of the order of
withdrawal order of the suit and they were also not called upon to deposit
the cost imposed rather case was re-opened and suit was dismissed on
merits ex-parte against the plaintiffs vide judgment dated 16.06.2011.
6. After coming to know about the said ex-parte judgment the plaintiffs
filed an application under order IX Rule 13 CPC before the concerned
trial court which was dismissed on the ground that such type of
application is not maintainable on behalf of the plaintiffs. The similar
order was passed in Miscellaneous appeal No. 10 of 2012 by the Court of
District Judge Palamau at Daltonganj vide Judgment dated 18.04.2015
which have been assailed in this case.
7. Learned counsel for the petitioners has submitted that petitioners
might have been noticed to deposit the amount of cost instead of
proceeding the suit after withdrawal of the same subject to payment of
cost. The reasons assigned by both the court below is not sustainable
under law. There is inherent power of courts under Section 151 CPC to
do complete justice between the parties by passing any order in the ends
of justice and preventing the misuse of process of the court.
8. Learned counsel for the respondents opposed the contention of
learned counsel for the petitioners and urged that impugned orders are
justified in the law.
9. I have given anxious consideration to the aforesaid point of
arguments and the core dispute involved in this case. It is settled law that
while granting permission under Sub Rule 3 of Rule 1 order 23 of the
Code of Civil Procedure 1908, it is upon to court to direct the plaintiffs
to pay cost of the defendants. Even if the order of cost in a given case
constitute as directing payment of cost as a condition precedent for filing
a fresh suit, the defect, if any, may be cured by depositing in court or
paying to the defendants concerned the cost within a reasonable time to
be fixed by the court before the second suit to be filed. If the plaintiff
fails to comply with special direction, then it will be open to the court to
reject the plaint of the fresh suit, but if the amount of cost is deposited
within the time fixed or extended by the court, the suit shall be deemed to
have been instituted validly on the date on which it was presented. This
view is in consonance with Justice and the spirit of Section 148 and 151
of the Code or Civil Procedure.
10. It appears that both the court below have committed serious error of
law by not exercising the powers inhered in the court to do Justice and
swayed themselves in the strict implementation of procedural law
divorcing the concept of justice. In view of above discussion and reasons,
this petition is allowed and the impugned order is set aside.
11. However, Petitioner is directed to deposit the cost of Rs. 1000/-
before the learned trial court, within three months from the date of this
order, failing which, the said cost shall be realized through process of the
court.
12. Pending I.A., if any, is disposed of.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Rajnish /- N.A.F.R.
