High Court of Meghalaya
Shyam Sundar Sharma & 2 Ors. vs . Mahendra Kumar Dudhoria on 21 March, 2022
Serial No.18
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
CRP No.21 of 2019 with
MC(CRP) No.12 of 2019
Date of Decision: 21.03.2022
Shyam Sundar Sharma & 2 Ors. Vs. Mahendra Kumar Dudhoria
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. D. Upadhaya, Adv.
For the Respondent(s) : Mr. G. Bhattacharjee, Sr. Adv. with
Mr. A. Debnath, Adv.
1. Heard Mr. S. D. Upadhaya, learned counsel for the petitioner. Also
heard Mr. G. Bhattacharjee, learned Sr. counsel for the respondent.
2. The petitioner being aggrieved by the impugned order dated 30.04.2019
passed in R.F.A No. 6(H) of 2016 by the learned Additional District Judge,
Shillong has approached this Court with a prayer to set aside and quash the
same.
3. Briefly stated, the lis between the parties involved a suit property,
comprising of an Assam - type house consisting of two rooms situated in 6
ACB, Luckier Road, Shillong. A suit for eviction was filed by the respondent
herein against the petitioner as regard the said suit property mentioned above,
being Title Suit No. 21 (H) 2004. The respondent has filed another Title Suit
related to the same suit property and against the petitioner herein, however
with the impleadment of another defendant, namely, Mr. J. N. Bawri the said
suit was registered as Title Suit No. 29 (H) 2004 with the relief sought to the
extent that the defendant No. 3 (Mr. J. N. Bawri) has no authority to collect
rent from the petitioner herein.
4. The Trial Court after recording evidence and hearing the parties has by
a common order decreed that the petitioner herein be evicted from the suit
property and that the defendant No. 3 has no authority to collect rent from the
petitioner herein.
5. The judgment and decree was challenged by the petitioner herein by
way of an appeal before the Court of the Additional District Judge, Shillong
in R.F.A No. 6(H) 2016.
6. During pendency of the appeal, an application under Order XXIII Rule
3 read with Section 151 CPC was filed by the petitioner herein before the
Appellate Court seeking withdrawal of the appeal with liberty for taking
appropriate alternative recourse in the court of competent jurisdiction. This
petition was heard and vide order dated 30.04.2019, the learned Additional
District Judge disposed of the petition allowing the prayer for withdrawal, but
has declined to grant permission to file afresh. Hence, this application.
7. Upon hearing the learned counsels for the parties, as pointed out by the
learned counsel for the petitioner, the application whereupon the impugned
order was passed was an application made under Order XXIII Rule 3, however
the learned Additional District Judge in the impugned order while quoting the
provision of Order XXIII Rule 3, has instead quoted the provision of Order
XXIII Rule 1(3).
8. At this juncture, it would be proper to set out the provisions cited
above:-
Order XXIII Rule 3 reads as follows:
"3. Compromise of suit.- Where it is proved to the satisfaction of
the Court that a suit has been adjusted wholly or in part by any lawful
agreements or compromise (in writing and signed by the parties), or
where the defendant satisfies the plaintiff in respect of the whole or any
part of the subject-matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded, and shall pass
a decree in accordance therewith (so far as it relates to the parties to
the suit, whether or not the subject-matter of the agreement,
compromise or satisfaction is the same as the subject-matter of the suit)
[Provided that where it is alleged by one party and denied by the
other that an adjustment or satisfaction has been arrived at, the Court
shall decide the question; but no adjournment shall be granted for the
purpose of deciding the question, unless the Court, for reasons to be
recorded, thinks fit to grant such adjournment]"
Order XXIII Rule 1(3) reads as follows:-
"1. Withdrawal of suit or abandonment of part of claim. - (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. On comparison of the above provisions, it is apparent that instead of
preferring the application under Order XXIII Rule 1(3), the petitioner had
quoted Order XXIII Rule 3 and the learned Additional District Judge without
discussing the import of Order XXIII Rule 3 has instead assumed that the
application was made under Order XXIII Rule 1(3). This clearly indicates that
the application of the petitioner was not dealt with in accordance with law and
accordingly, the conclusion reached was also based on a wrong premise.
10. In view of the error committed, it is but proper to allow the petitioner
to reagitate the matter before the learned Additional District Judge and
accordingly, the petition dated 30.04.2019 filed by the petitioner in R.F.A
No.6 (H) of 2016 is directed to be reheard.
11. The impugned order is, therefore set aside and quashed and the learned
Additional District Judge, Shillong is directed to once again hear the parties
on the said petition as mentioned above.
12. As agreed to by the parties, the matter will be heard by the said court
on 29.03.2022.
13. Registry is directed to issue copy of this order upon the Court of the
learned Additional District Judge, Shillong for compliance.
14. With the above, this petition is hereby disposed of. No cost.
15. All related and analogous orders including interim orders passed stands
disposed of accordingly.
Judge
Meghalaya
21.03.2022
"Tiprilynti-PS"
