Madhya Pradesh High Court
Mohd. Sarvar Khan vs Dr. Rajdeep Kapoor on 20 May, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 20th OF MAY, 2024
MISC. APPEAL NO. 2704 OF 2023
BETWEEN:-
1. MOHD. SARVAR KHAN, S/O LATE MOHD
ANWAR KHAN, AGED ABOUT 37 YEARS,
OCCUPATION- BUSINESS R/O AZAD MARKET,
KOTWALI ROAD, DISTRICT BHOPAL M.P.462010
2. SMT. ROUNAK JEHAN W/O LATE MOHD.
ANWAR KHAN, AGED ADULT, OCCUPATION-
BUSINESS R/O AZAD MARKET, KOTWALI
ROAD, DISTRICT BHOPAL M.P.462010
.....APPELLANTS
(SHRI SIDDHARTH GULATEE - ADVOCATE)
AND
1. DR. RAJDEEP KAPOOR,K S/O LATE DR.
HARWANT SINGH KAPOOR, AGED ABOUT
55 YEARS, R/O 102-H, RIDGE ROAD, IDGAH
HILLS, DISTRICT BHOPAL M.P. 462001
2. STATE OF MADHYA PRADESH THROUGH
COLLECTOR, BHOPAL (M.P.)
....RESPONDENT
(SHRI DEEPESH JOSHI - ADVOCATE)
This appeal coming on for hearing on this day, the Court passed
the following:
ORDER
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This misc. appeal has been preferred by the appellants/defendants
1-2 challenging judgment and decree of remand dated 30.06.2022 passed
by 23rd District Judge, Bhopal, in regular civil appeal no. 21/2021
reversing the order dated 06.08.2021 passed by 10 th Civil Judge Junior
Division, Bhopal in RCS no.139-A/2021 whereby suit was dismissed
holding it to be not maintainable in view of provisions contained in Order
XXIII Rule 1(4) CPC, and first appellate Court in plaintiff's civil appeal
set aside the order of trial Court and remanded the matter for decision of
civil suit afresh.
2. Facts, in short are that, the plaintiff/respondent 1 instituted a suit
for declaration of title, recovery of possession and permanent injunction
in respect of the disputed lands with the allegations that the plaintiff is
son of Dr. Harwant Singh Kapoor, owner of the land and the Will dated
13.05.1988 allegedly executed by Harwant Singh Kapoor in favour of
defendant 1-Mohd. Sarvar Khan is forged and fabricated document,
which does not confer any right on him. Instant (second) suit was
dismissed on 06.08.2021 in view of provisions contained in Order XXIII
Rule 1(4) CPC due to withdrawal of previous civil suit without any
liberty of the Court for filing fresh suit, and in civil appeal filed by
plaintiff, order dated 06.08.2021 has been set aside and matter has been
remanded to trial Court for decision of civil suit afresh on merits.
3. Learned counsel for the appellants/defendants 1-2 submits that
Harwant Singh Kapoor had executed a Will in favour of defendant 1-
Mohd Sarvar Khan on 13.05.1988 and after his death on 29.06.2012, an
application for mutation was filed by defendant, which was rejected by
Naib Tahsildar on 15.01.2018, and the appeal filed against which, before
SDO was dismissed on 15.02.2019, however, second appeal of the
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defendant was allowed by Commissioner vide order dated 27.11.2019
with the direction to mutate name of defendant. The plaintiff filed misc.
petition no. 6597/2019 before High Court challenging Commissioner's
order dated 27.11.2019, and thereafter on 13.03.2020 filed a civil suit
no.112-A/2021 before District Judge, Bhopal for restoration of possession
and for declaring the Will to be null and void (which remained pending
even without registration for want of court fee), thereafter, misc. petition
no. 6597/2019 was dismissed on 06.01.2021 with the observation that the
plaintiff is at liberty to establish his title before Civil Court, however at
this juncture factum of pendency of 1 st civil suit was not disclosed. In the
pending civil suit, first application under Order XXIII Rule 1(3) CPC was
filed on 11.01.2021 seeking withdrawal of suit with liberty to file fresh
suit. Thereafter SLP was filed on 23.01.2021 before Hon'ble Supreme
Court challenging the order dated 06.01.2021 passed by High Court in
misc. petition no.6597/2019, in which pendency of first civil suit was not
disclosed. Thereafter on 28.01.2021 another/second application under
Order XXIII Rule 1(1) CPC for withdrawal of suit was filed and was
allowed by trial Court dismissing the suit as withdrawn. On 30.01.2021
second/instant civil suit no.139-A/2021 was filed before 10 th Civil Judge
Class-II, Bhopal, that too without disclosing factum of pendency of first
civil suit.
4. Learned counsel for the appellants submits that on 11.02.2021 SLP
was got dismissed on first hearing making statement that civil suit
no.139-A/2021 is pending and at that time factum of dismissal of first
civil suit was not disclosed and obtained direction from Hon'ble Supreme
Court for expeditious disposal of second civil suit. It was also stated
before Hon'ble Supreme Court that dispossession took place after
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mutation. Learned Counsel submits that with this background, an
application under Order XXIII Rule 1(4) CPC was filed on 22.06.2021 by
defendants 1-2 praying for dismissal of second/instant civil suit, and after
taking into consideration rival submissions of the parties, trial Court
rightly dismissed the suit vide order dtd. 06.08.2021 holding it to be not
maintainable in view of provisions contained in Order XXIII Rule 1(4)
CPC due to withdrawal of previous suit without any liberty.
5. Learned counsel for the appellants/defendants 1-2 submits that
first appellate Court has wrongly reversed the order dated 06.08.2021
passed by trial Court without taking into consideration the M.P.
amendment made in Order IV Rule 1 CPC w.e.f. 16.09.1960, which will
prevail over Central amendment made in Order IV Rule 1 CPC w.e.f.
01.07.2002. In support of his submissions, learned counsel for the
appellants placed reliance on the decisions in the case of Vidyawati Gupta
and others vs. Bhakti Hari Nayak and others (2006) 2 SCC 777; Sarguja
Transport Service vs. State Transport Appellate Tribunal, M.P. Gwalior
and others (1987) 1 SCC 5; and in the case of Devendra Kumar Pandya
vs. Jaidayal Lala Tahalram 1981 MPLJ 280 (DB). He submits that in the
light of observations made in para 50 of the case of Vidyawati Gupta
(supra), the judgment of Madras High Court in the case of M/s. Olympic
Cards Limited vs. Sri H. Noormohamed 2013 (1) MLJ 504 is impliedly
overruled. Learned counsel also submits that as per High Court
amendment there are three sub-rules to Rule (1) of Order IV CPC,
therefore, even if sub-rule (3) to Rule 1 has been inserted by amendment
in CPC w.e.f. 01.07.2002, new sub-rule (3) cannot be treated to be in
existence in the light of existing High Court amendment. As such, he
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prays for allowing the misc. appeal and for setting aside the judgment and
decree of remand.
6. Per contra, learned counsel for the respondent 1/plaintiff submits
that dismissal of previous (first) civil suit no.112-A/2021 would not come
in the way of later/instant civil suit filed by plaintiff because the first civil
suit was not even registered due to non-payment of requisite Court fee
and was withdrawn even prior to registration, therefore, in the light of
provisions contained in Order IV Rule 1(3) CPC, the suit will not be
treated to have been instituted. He submits that as first suit was
withdrawn even prior to institution, therefore, trial Court committed
illegality in allowing the application under Order XXIII Rule 1(4) CPC.
Learned counsel submits that case of plaintiff is squarely covered by
Division Bench's decision of Madras High Court in the case of M/s.
Olympic Cards Limited (supra). He further submits that the judgment in
the case of M/s Olympic Cards Limited, has also been approved by
Hon'ble Supreme Court in the case of Patil Automation Private Limited
and others vs. Rakheja Engineers Private Limited (2022) 10 SCC 1,
which is sufficient to clear all the doubts about 'presentation of plaint'
and 'institution of suit'. In support of his submissions, learned Counsel
also placed reliance on a decision in the case of Surendra Prasad Lahiri
Choudhary vs. Attabuddin Ahmed, The Calcutta Weekly Notes Vol.
XXVI 391. Without disputing the legal position settled by Division
Bench of this Court in the case of Devendra Kumar Pandya (supra), he
further submits that in presence of Central amendment made in Order IV
Rule 1 CPC and there being no inconsistency in between the Central
amendment and High Court amendment, the sub-rule (3) to Rule 1 of
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Order IV CPC has to be followed as it is. With these submissions, he
prays for dismissal of the misc. appeal.
7. Heard learned counsel for the parties and perused the record.
8. For due appreciation, the provision contained in Order IV of CPC
reads as under:-
"ORDER IV
INSTITUTION OF SUITS
1. Suit to be commenced by plaint.- (1) Every suit shall be instituted by
presenting a plaint in duplicate to the Court or such officer as it appoints in
this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so
far as they are applicable.
(3) The plaint shall not be deemed to by duly instituted unless it complies with
the requirements specified in sub-rules (1) and (2).
2. Register of suits.- The Court shall cause the particulars of every suit to be
entered in a book to be kept for the purpose and called the register of civil
suits. Such entries shall be numbered in every year according to the order in
which the plaints are admitted."
9. Similarly the M.P. High Court amendment made in Order IV Rule
1 CPC also reads as under:-
"Madhya Pradesh.--(a) Substitute the following for Rule 1(1)--
"1. (1) Every suit shall be instituted by presenting to the Court or such officer
as it appoints in this behalf a plaint, together with as many true copies on plain
paper of the plaint as there are defendants, for service with the summons upon
each defendant, unless the Court, for good cause shown, allows time for filing
such copies."
(b) Add the following as sub-rule (2) to Rule 1 and renumber the present sub-
rule (2) as sub-rule (3):
"(2) The court fee chargeable for such service shall be paid in the case of suits
when the plaint is filed, and in the case of all other proceedings when the
process is applied for." M.P. Gazette 16-9-1960, Pt. 4(Ga), p. 905.
10. From bare and comparative reading of the said provisions, it is
clear that by Central amendment sub-rule (3) to Rule 1 of Order IV CPC
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has been inserted and such sub-rule was not in existence even at the time
of amendment made by High Court in Order IV Rule 1 CPC. From
reading of newly inserted sub-rule (3), it is also clear that there is no
question of any consistency or inconsistency in between the Central and
High Court amendment about newly inserted sub-rule (3). As such, the
decision relied upon by counsel for the appellants in the case of
Devendra Kumar Pandya (supra) is not applicable to the case in hand. So
far as argument of learned Counsel regarding non-existence of sub-rule
(3) to Rule 1 of Order IV CPC in the light of existing amendment of High
Court containing three sub-rules to Order IV Rule 1 CPC, is concerned,
the argument raised on behalf of the appellants is of no significance
because in my considered opinion, such ambiguity can be removed by
renumbering of sub-rule (3) as sub-rule (4) to Order IV Rule 1 CPC.
11. For due consideration of real meaning of 'institution of suit',
relevant rules no. 38, 39 and 41 of the Rules made under the M.P. Civil
Courts Act, 1958 (in short 'the Rules') are also quoted as under:-
"38. The officer receiving the plaint shall examine it in order to find out
whether all the requirements of law have been complied with. This
examination should be directed to ascertaining among other things -
(i)Whether the plaint has been properly stamped in accordance with the
valuation put upon it. (See in this respect the instructions in. Appendix
II to Part V).
(ii)Whether it has been properly signed and verified (Order VI, Rules
14 and 15).
(iii)Whether it complies with the requirements of Order VII, Rules 1 to
18.
(iv)Whether in the case of recovery of land it sets out sufficient
specification of the land claimed, i.e., if an entire plot or field, to which
a separate survey number has been assigned is claimed, whether the
plaint states that survey number and its area, or, if a portion only of
such a survey number is claimed, whether the plaint defines
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specifically the area claimed and its position and boundaries are clearly
shown in the map filed with the plaint.
(v)Whether it is accompanied by the necessary copies of plaint and
process fees [Order IV, Rules 1 (1) and (2)].
(vi)Whether the documents attached to the plaint (if any) are
accompanied by a list in the prescribed form [Order VII, Rule 9 (1)].
(vii)Whether it is accompanied by plaintiff's registered address as
required by Order VII, Rule 19.
(viii)Whether in the case of minor plaintiff and defendants the
requirements of Order XXXII, Rules 1 and 3, have been complied with
and the necessary application supported by an affidavit verifying the
fitness of the proposed guardian ad litem of the minor defendant(s) has
been filed.
(ix)Whether the suit is within the pecuniary and territorial jurisdiction
of the Court.
(x)Whether the claim is apparently within time.
(xi)Whether the power of attorney has been properly accepted and
endorsed by the pleader and whether in the case of illiterate executants
it has been attested as required by Rule 9-A.
39. (1) The officer after examining the plaint shall record his opinion on it in
the following form.:
"Presented on.................by ...................... properly drawn up,
apparently within time and properly stamped."
He will then, where necessary, enter it in his register of plaints and
applications received (No.II-78) and transmit it to the Court concerned.
Note. - This rule applies also to memoranda of appeal and applications.
(2) The register shall be destroyed after three years from the date of the
last entry made therein.
(3) The officer examining the plaint shall refer any plaint which he
considers should be returned or rejected for any reason for the orders
of the Judge.
41. A plaint on admission shall be registered in the register of civil suits and
entered in the judicial diary' and cause list. Ordinarily registration should be
within two days of the date of admission."
12. At the same time provision contained in Order XXIII Rule 1 CPC
is also required to be considered, which reads as under :-
ORDER XXIII
WITHDRAWAL AND ADJUSTMENT OF SUITS
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"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) An application for leave under the proviso to sub-rule (1) shall be ac-
companied by an affidavit of the next friend and also, if the minor or such
other person is represented by a pleader, by a certificate of the pleader to
the effect that the abandonment proposed is, in his opinion, for the benefit
of the minor or such other person.
(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 in-
stitute 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 per-
mission 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.
(4) Where the plaintiff--
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3),
he shall be liable for such costs as the Court may award and shall
be precluded from instituting any fresh suit in respect of such sub -
ject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit
one of several plaintiffs to abandon a suit or part of a claim under sub-rule
(1), or to withdraw, under sub-rule (3), any suit or part of a claim, without
the consent of the other plaintiffs."
13. While considering the question of registration and institution,
Division Bench of Madras High Court in the case of M/s. Olympic Cards
Limited vs. Sri H. Noormohamed 2013 (1) MLJ 504 = 2013(2) ICC 580
has held as under:-
"17. It is therefore clear that any abandonment before the registration of suit would
not constitute withdrawal or abandonment of suit within the meaning of Order XXIII
Rule 1 C.P.C., so as to operate as a legal bar for a subsequent suit of the very same
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nature. It is only the withdrawal or abandonment during the currency of a legal pro-
ceedings would preclude the plaintiff to file a fresh suit at a later point of time on the
basis of the very same cause of action."
14. Although in the context of section 12-A of the Commercial Courts
Act, 2015, but in detail Hon'ble Supreme Court has considered the
distinction between 'presentation of plaint' and 'institution of suit' and
after taking into consideration the provisions contained in Order IV Rule
1 sub-rule (3) CPC as well as the decision in the case of M/s. Olympic
Cards Limited (supra), held as under :
"69. Another area of debate has been about the distinction between the presentation
of a plaint and institution of a suit. Section 3(2) of the Limitation Act, 1963, provides
that for the purpose of the Limitation Act, a suit is instituted in the ordinary case,
when the plaint is presented to the proper Officer. In the case of a pauper, the suit is
instituted when his application to leave to sue as a pauper is made. Order IV Rule 1 of
the CPC reads as follows:
'Order IV Rule 1. Suit to be commenced by plaint.-(1) Every suit shall be in-
stituted by presenting a plaint in duplicate to the Court or such officer as it
appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII,
so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies
with the requirements specified in sub-rules (1) and (2).'
70. Sub-Rule (3) of Order IV Rule 1 was inserted by Act 46 of 1999 w.e.f.
01.07.2002. Shri Sharath Chandran has drawn our attention to the Judgment of the
High Court of Madras reported in Olympic Cards Limited v. Standard Chartered
Bank, (2013) 1 CTC 38. In the said case, the question, which arose was, whether
there was an abandonment or withdrawal of suit within the meaning of Order XXIII
Rule 1 of the CPC, which would operate as a bar to file a fresh suit. In this context,
we notice the following discussion:
'16. Rule (1) of Order 4 of C.P.C. provided for institution of Suits. Rules 3 &
4 of Order 4 contains the statutory prescription that the Plaint must comply
with the essential requirements of a valid Plaint and then only the process of
filing would culminate in the registration of a Suit. Rule 21 of Civil Rules of
Practice contains the basic difference between presentation and institution.
There is no dispute that the date of filing the Plaint would be counted for the
purpose of limitation.
However, that does not mean that the Suit was validly instituted by filing the
Plaint. The Plaint, which does not comply with the Rules contained in Orders
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4 & 7, is not a valid Plaint. The Court will initially give a Diary Number in-
dicating the presentation of Suit. In case the Plaint is returned, it would re -
main as a 'returned Plaint' and not a 'returned Suit'. The act of numbering the
Plaint and inclusion in the Register of Suits alone would constitute the insti-
tution of Suit. The stages prior to the registration of Suit are all preliminary in
nature. The return of Plaint before registration is for the purpose of comply-
ing with certain defects pointed out by the Court. The further procedure after
admitting of the Plaint is indicated in Rule 9 of Order 7. This provision shows
that the Court would issue summons to the parties after admitting the Plaint
and registering the Suit. Thereafter only the Defendants are coming on re-
cord, exception being their appearance by lodging caveat. Even after admit-
ting the Plaint, the Court can return the Plaint on the ground of jurisdiction
under Rule 10 of Order 7 of C.P.C. The fact that the Plaintiff/Petitioner
served the Defendant/respondent the copies of Plaint/Petitions before filing
the Suit/Petition would not amount to institution of Suit/filing Petition. It is
only when the Court admits the Plaint, register it and enter it in the Suit re-
gister, it can be said that the Suit is validly instituted.
17. It is, therefore, clear that any abandonment before the registration of Suit
would not constitute withdrawal or abandonment of Suit within the meaning
of Order 23, Rule 1, C.P.C., so as to operate as a legal bar for a subsequent
Suit of the very same nature. It is only the withdrawal or abandonment during
the currency of a Legal proceedings would preclude the Plaintiff to file a
fresh Suit at a later point of time on the basis of the very same cause of ac -
tion.'
71. The contention appears to be that it may be a fair view to take that there is no in-
stitution of the suit within the meaning of Section 12A, until the Court admits the
plaint and registers it in the suit register. In other words, presentation of the plaint
may not amount to institution of the suit for the purpose of Order IV Rule 1 of the
CPC and Section 12A of the Act. If this view is adopted, it is pointed out that before
the plaint is registered after presentation and there is non-compliance with Section
12A, the plaintiffs can, then and there, be told off the gates to first comply with the
mandate of Section 12A. This process would not involve the Courts actually spending
time on such matters. In the facts, this question does not arise and, it may not be ne-
cessary to explore this matter further."
15. Perusal of record of previous civil suit no.112-A/2021 shows that
in this civil suit, the plaintiff did not pay requisite Court fee, therefore, the
exercise provided in Rule 38 and 39 of the Rules was not done by the
concerning officer and due to certain defaults, the suit was also not
registered, which appears to have been registered in pursuance of order of
dismissal of suit as withdrawn on 28.01.2021, which is mentioned in the
order itself. So, it is very much clear that after filing of plaint (first),
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neither any presentation of it was done nor any report/opinion required
under Rule 39 was submitted by the concerning officer/dealing assistant
nor it was registered as per requirement of Rule 41 of the Rules.
16. In the case of Vidyawati Gupta and others (supra), Hon'ble
Supreme Court has held as under:-
"50. The intention of the legislature in bringing about the various amendments in the
Code with effect from 1st July, 2002 were aimed at eliminating the procedural delays
in the disposal of civil matters. The amendments effected to Section 26, Order IV and
Order VI Rule 15, are also geared to achieve such object, but being procedural in
nature, they are directory in nature and non-compliance thereof would not
automatically render the plaint non-est, as has been held by the Division Bench of the
Calcutta High Court."
17. In the case of Vidyawati Gupta and others (supra), although
Hon'ble Supreme Court has held that the provisions contained in Order
IV are procedural in nature and directory, but has not taken into
consideration the distinction in between 'presentation of plaint' and
'institution of suit' in the context of provision contained in Order XXIII
Rule 1(4) CPC regarding withdrawal of suit before its registration,
therefore, it does not give any help to the appellants/defendants because a
Division Bench of Madras High Court in the case of M/s. Olympic Cards
Limited (supra) has already taken into consideration almost
similar/identical controversy, which in fact has been approved by Hon'ble
Supreme Court in the case of Patil Automation Private Limited (supra).
Therefore, and in view of the fact that previous/first suit was withdrawn
prior to its registration, therefore, I deem it appropriate to follow the
decision of Madras High Court in the case of M/s. Olympic Cards
Limited (supra) and hold that the bar contained in Order XXIII Rule 1(4)
CPC would not operate to the instant/second suit because previous suit
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was withdrawn even prior to its registration and such suit cannot be
considered to be duly instituted suit.
18. Even otherwise while passing the order dated 11.02.2021 in SLP,
Hon'ble Supreme Court has issued direction for expeditious disposal of
second/instant civil suit and despite knowledge of the said order, the
defendants have not taken care to get it reviewed, if it was wrong.
19. It is pertinent to mention here that in the aforesaid factual backdrop
and legal position, even if factum of pendency of first or second suit was
not brought by the plaintiff into notice of High Court or Supreme Court,
the same has no adverse effect on the impugned judgment and decree of
remand as well as on the rights of plaintiff.
20. In view of the aforesaid discussion, in my considered opinion, first
appellate Court has not committed any illegality in passing the impugned
judgment and decree of remand, hence declining interference, instant
misc. appeal is dismissed.
21. Parties shall bear their own costs.
22. Misc. application(s), pending if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
pb
Date: 2024.05.28 15:06:54 +05'30'
