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2025 SCC OnLine J&K 537
†
In the High Court of Jammu and Kashmir and Ladakh
(BEFORE SANJAY DHAR, J.)
Manzoor Ahmad Wani … Petitioner(s);
Versus
Ayaz Ahmad Raina and Another … Respondent(s).
CM(M) No. 96/2024
Decided on May 16, 2025, [Reserved on : 06.05.2025]
Advocates who appeared in this case :
Mr. Aswad Attar, Advocate.
Mr. Rizwan-ul-Zaman, Advocate.
The Judgment of the Court was delivered by
SANJAY DHAR, J.:— The petitioner, through the medium of present
petition, has challenged order dated 22.12.2023 passed by the learned
Sub Judge, Vailoo (hereinafter referred to as “the trial court”), whereby
application of respondent No. 1 seeking withdrawal of the suit with
permission to file fresh suit on the same cause of action in terms of
Order 23 Rule 1 CPC, has been allowed. Challenge has also been thrown
to subsequent suit filed by respondent No. 1 against the petitioner and
proforma respondent, which is stated to be pending before the trial
court.
2. It appears that respondent No. 1 (hereinafter referred to as “the
plaintiff” filed a suit for permanent prohibitory injunction against the
petitioner (hereinafter referred to as “the defendant”) before the trial
court for restraining him from making any interference with his peaceful
possession of a patch of land comprised in Survey No. 3063/1725
situated at Vailoo. It was pleaded by the plaintiff that in the year 2010,
the defendant had provided him the suit land which is adjacent to the
shops that have been taken on rent by the plaintiff. The suit land was
provided to the plaintiff for the purpose of construction of service
station for 9+washing vehicles. It was claimed by the plaintiff that
initially the suit land was leased out by the defendant to him but later
on he received sale consideration of Rs. 50,000/from the plaintiff and
agreed to transfer the ownership of the said land in his favour.
3. It was further pleaded that the plaintiff has incurred expenses of
about Rs. 15.00 lacs for construction and maintenance of suit property
and he has been paying the electricity and water charges for running
his car workshop from the suit land. It was alleged by the plaintiff that
the defendant is trying to demolish the existing structure and is trying
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to interfere in his peaceful possession of the suit property by excavating
the adjacent land to the detriment of the plaintiff.
4. It seems that the defendant filed his written statement, in which
he admitted that he had handed over possession of the suit land to the
plaintiff but he claimed that the same was done on the licence basis
and licence fee of Rs. 24,000/per annum was fixed. It was pleaded by
the defendant that he requires the suit property for his own use and,
therefore, he approached the plaintiff to hand over the possession of
the property in question to him. It was contended by the defendant
that adjacent to the suit property, he is raising construction on his own
land after obtaining NOC and permission from the concerned authorities
and that he is not raising any construction on the suit land. It was
further pleaded by the defendant that under the garb of the suit, the
plaintiff is seeking declaration with regard to his ownership on the
ground that he has purchased the suit land, as such, the suit is not
maintainable.
5. After filing of written statement by the defendant, the learned
trial court fixed the case for recording of preliminary statements of the
parties. At this stage the plaintiff filed an application under Order 23
Rule 1 CPC seeking withdrawal of the suit with a prayer for permission
to file a fresh suit on same cause of action. In the application it was
pleaded that due to certain omissions in the statement of facts and
some other inadvertent mistakes of legal and technical nature including
factual as well, which may damage the case of the plaintiff, it is
necessary and expedient to file a properly drafted fresh suit. It was
further pleaded that due to technical defect on record, the plaintiff
desires to withdraw the suit with permission to file a fresh one on the
same cause of action. It was mentioned in the application that the
plaintiff had narrated the facts to his counsel but the counsel has not
mentioned the exact facts in the plaint and in case the plaintiff is not
permitted to file a fresh suit after withdrawal of the suit, he would
suffer an irreparable loss.
6. The defendant contested the aforesaid application by filing his
reply. In the reply, it was submitted that the plaintiff was supposed to
mention and explain each and every defect on account of which his suit
would fail and because the same has not been done by the plaintiff, the
application deserves to be dismissed. It was further contended that it
has not been mentioned in the application as to with which technical
and formal defect the suit of the plaintiff is suffering. Thus, according to
the defendant because the exact details are not mentioned in the
application, as such, the same is liable to be dismissed.
7. The learned trial court vide order impugned dated 22.12.2023
allowed the application of the plaintiff filed under Order 23 Rule 1 CPC
and permitted him to withdraw the suit and to file a fresh suit on the
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same cause of action. While allowing the application, the learned trial
court observed that because proper relief in the suit has not been
sought by the plaintiff, as such, the same is suffering from formal
defect which may result in failure of suit of the plaintiff.
8. It is pertinent to mention here that after withdrawal of the suit;
the plaintiff filed another suit before the learned trial court against the
defendant and proforma respondent. In the said suit, it was pleaded
that the defendant had agreed to sell the suit land measuring 36 feet in
length and breadth upto boundary wall of forest land for a sale
consideration of Rs. 80,000/, out of which Rs. 50,000/were paid as
earnest money by the plaintiff to the defendant, regarding which an
th
agreement came to be executed between the parties on 6 July, 2011.
A copy of the said agreement has been placed on record along with the
plaint. It has been pleaded in the fresh suit that the plaintiff has been
requesting the defendant to execute the sale deed but he is turning a
deaf ear to his requests. The other pleadings of the suit are more or
less in conformity with the assertions made in the earlier suit. The
plaintiff, however, has claimed a decree for declaration that agreement
dated 6th July, 2011, be declared as valid and binding upon the
defendant. He has sought a further declaration that he is owner in
possession of the suit property. The plaintiff has also sought a
permanent prohibitory injunction restraining the defendant from raising
any sort of construction on the suit land and from creating third party
interest. The plaintiff has further sought a decree of mandatory
injunction directing the defendant to execute a registered sale deed in
his favour in respect of the suit land.
9. The petitioner/plaintiff has challenged the impugned order passed
by the learned trial court whereby permission has been granted to the
respondent No. 1/defendant to file a fresh suit, as also the fresh suit
filed by the plaintiff on the grounds that it was not open to the learned
trial court to grant permission to the plaintiff to withdraw the suit on
the ground that the same was suffering from formal defect as there was
no formal defect in the suit. It has been contended that a court can
grant permission to file a fresh suit only if a suit suffers from formal
defect and in no other circumstances. It has been further contended
that the learned trial court has not satisfied itself as to whether the
defect sought to be removed was of such a nature as would have been
fatal to the suit and whether the said defect could not have been
corrected by amending the suit. It has been further contended that the
impugned order passed by the learned trial court is totally perverse and
manifestly arbitrary and, therefore, even the proceedings in the
impugned suit are liable to be quashed. It has also been contended
that the subsequent suit filed by the plaintiff contains averments which
are wholly inconsistent with the earlier suit and the plaintiff has sought
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reliefs which were not sought in the earlier suit.
10. I have heard learned counsel for the parties and perused record
of the case.
11. At the centre of controversy in this case is the provision
contained in Order 23 Rule 1 of the Code of Civil Procedure, which reads
as under:
ORDER XXIII - WITHDRAWAL AND ADJUSTMENT OF SUITS
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 accompanied 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 persons.
(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.
(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 preclude
from instituting any fresh suit in respect of such subject-
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.
12. From a perusal of the aforesaid provision, it is clear that a
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plaintiff has an absolute right of withdrawal or abandonment of the suit
or part of his claim. Sub-rule (3) of Rule (1) quoted above, gives
discretion to the court to permit the plaintiff to institute a fresh suit for
the subject matter of a suit or part of a claim after granting plaintiff the
permission to withdraw from such suit or such part of claim with liberty
to institute a fresh suit in respect of the subject matter of such suit or
part of the claim. Thus, the court is vested with jurisdiction to permit a
plaintiff to withdraw a suit or a part of claim and in case such plaintiff
does not desire to file a fresh suit for the same subject matter and on
the same cause of action, no permission of the court is needed for
withdrawal of the suit but if the plaintiff desires to file a fresh suit on
the same subject matter and on the same cause of action, the court has
discretion to allow the plaintiff to do so. This can be done by the court
only if it is satisfied that the suit would have failed by reason of some
formal defect or there are sufficient grounds to the plaintiff to institute
a fresh suit for the subject matter of a suit or part of a claim. The court,
while permitting a plaintiff to file a fresh suit, can also impose such
terms and conditions as it thinks fit.
13. Thus, permission to file a fresh suit on the same subject matter
and on the same cause of action can be granted to a plaintiff only on
two grounds; (i) when the court is satisfied that suit must fail by some
reason of formal defect; or (ii) there are sufficient grounds for allowing
the plaintiff to file a fresh suit.
14. The Supreme Court has, in the case of V. Rajendran v.
Annasamy Pandian, (2017) 5 SCC 63, while interpreting the provisions
contained in Order 23 Rule 1(3) CPC, explained the scope of the said
provision in the following manner:
10. In K.S. Bhoopathy v. Kokila [K.S. Bhoopathy v. Kokila, (2000)
5 SCC 458], it has been held that it is the duty of the Court to be
satisfied about the existence of “formal defect” or “sufficient
grounds” before granting permission to withdraw the suit with liberty
to file a fresh suit under the same cause of action. Though, liberty
may lie with the plaintiff in a suit to withdraw the suit at any time
after the institution of suit on establishing the “formal defect” or
“sufficient grounds”, such right cannot be considered to be so
absolute as to permit or encourage abuse of process of court. The
fact that the plaintiff is entitled to abandon or withdraw the suit or
part of the claim by itself, is no licence to the plaintiff to claim or to
do so to the detriment of legitimate right of the defendant. When an
application is filed under Order 23 Rule 1(3) CPC, the Court must be
satisfied about the “formal defect” or “sufficient grounds”. “Formal
defect” is a defect of form prescribed by the rules of procedure such
as, want of notice under Section 80 CPC, improper valuation of the
suit, insufficient court fee, confusion regarding identification of the
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suit property, misjoinder of parties, failure to disclose a cause of
action, etc. “Formal defect” must be given a liberal meaning which
connotes various kinds of defects not affecting the merits of the plea
raised by either of the parties.
15. From the foregoing analysis of law on the subject, it is clear that
it is the duty of the court to be satisfied about the existence of a formal
defect or sufficient grounds before granting permission to withdraw the
suit with liberty to file a fresh suit on the same cause of action. The
Court has gone on to explain the term “formal defect” by stating that it
is a defect of form prescribed by the rules of procedure such as, want of
notice under Section 80 CPC, improper valuation of the suit, insufficient
court fee, confusion regarding identification of the suit property,
misjoinder of the parties, failure to disclose a cause of action. The
Court, however, in the said case has not explained the expression
“sufficient grounds” appearing in clause (b) of sub-rule (3) of Rule 1 of
Order 23 CPC.
16. Learned counsel for the petitioner has submitted that clause (b)
has to be read as ejusdem generis with those in clause (a), meaning
thereby that the ground incorporated in “sufficient cause” should be
analogous to the “formal defect”. In this regard, the learned counsel
has relied upon the judgment of Bombay High Court in the case of
Kashinath v. Vishnu, 2017 SCC OnLine Bom 410. In the said case,
Bombay High Court, after relying upon the judgment of the Full Bench
of the same Court in the case of Ramrao Bhagwantrao Inamdar v. Babu
Appanna Samage, AIR 1940 Bom 121, has held that the grounds
mentioned in Rule 1(2)(b) must be analogous with the grounds
mentioned in Rule 1(2)(a) of Order 23 of the Code.
17. However, a contrary view has been taken by this Court in the
case of Fateh Shah v. Mst. Bega, AIR 1964 J&K 18. The relevant
observations of this Court are quoted below:
“The very fact that the Legislature has given two different grounds
in O. 23 R. 1(2)(a) and (b) for allowing withdrawal of the suit
indicates that the grounds are separate and independent and not
allied or analogous. The word ‘other’ before ‘sufficient grounds’
clearly indicates that the sufficient grounds contemplated by the
Legislature would be grounds other than those mentioned in sub-cl
(a) of Order 23, Rule 1(2), Finally, where the Legislature intended
that the words should be used and read as ejusdem generis they
have been incorporated in the same sentence or in the same clause.
The rule of ejusdem generis would apply only if the general words
follow the specific words in the same sentence or in the same clause.
But it would not apply to if the words are employed in a different sub
-clause altogether and are not associated or coupled together. Thus,
the words “other sufficient grounds” in sub-clause (b) cannot be
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read as being analogous to the grounds given in sub-clause (a) and
these words give a direction to the trial court to allow the withdrawal
of the suit, if it is satisfied that there are sufficient grounds for
allowing the prayer of the plaintiff.”
18. The aforesaid position of law has been reiterated and reaffirmed
by this Court in the case of Pt. Lok Nath v. Pt. Bhagwan Dass, 1980 KLJ
399.
19. In view of the authoritative pronouncement of this Court in
Fateh Shah's case (supra), it can safely be stated that the words “other
sufficient grounds” appearing in clause (b) are not to be read as
analogous to the grounds given in sub-clause (a) and it has to be held
that the aforesaid words give a wide discretion to the trial court to allow
withdrawal of a suit if it is satisfied that there are sufficient grounds
existing for allowing such prayer of the plaintiff.
20. Keeping the aforesaid legal position in mind, let us now advert
to the facts of the present case. In the instant case, as already noted,
in the first suit, the plaintiff had sought a permanent prohibitory
injunction against the defendant for restraining him from interfering in
his peaceful possession over the suit land but it was pleaded in the
plaint filed in the first suit itself that the plaintiff had purchased the
land in question after paying the sale consideration of Rs. 50,000/to the
defendant and that defendant had agreed to vest ownership rights in
respect of the suit property in his favour. Despite these pleadings, the
plaintiff had only prayed for a decree of permanent prohibitory
injunction without seeking a decree of declaration or specific
performance of agreement. Therefore, the plaintiff had omitted to seek
the appropriate relief in the first suit. Although in the application filed
by the plaintiff seeking withdrawal of the suit and permission to file
fresh suit, it is not specifically mentioned that he had omitted to seek
appropriate relief in the first suit, nonetheless it has been specifically
mentioned that there are certain omissions and mistakes made while
drafting the first suit. This has been explained by learned counsel for
the plaintiff while arguing the application before the learned trial court.
21. The question arises as to whether omission to seek appropriate
relief in a suit would be covered by any of the clauses of sub-rule (3) of
Rule 1 of Order 23 CPC. In the opinion of this Court, failure of the
plaintiff to incorporate the appropriate prayer in the suit, which would
result in dismissal of the suit, is certainly a defect which provides a
sufficient ground for permitting the plaintiff to come to court again with
a properly drafted plaint. Similar views have been expressed by the
High Court of Orissa in the case of Atul Krushna Roy v. Rajkishore
Mohanty, AIR 1956 Ori 77, which was later on followed by the same
High Court in the case Brajamohan Sabato v. Sarojini Panigrahi, AIR
1975 Ori 39.
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22. As already stated, the expression “sufficient grounds” appearing
in clause (b) of sub-rule (3) of Rule 1 of Order 23 CPC, gives a judicial
discretion to the court to consider whether the grounds stated by the
plaintiff should be accepted as sufficient to permit him to file a fresh
suit after removing the defects in the suit pending before the court.
This expression has to be given wide connotation and it cannot be given
a restrictive meaning so as to shut out a fair trial on merits. Merely
because some error has been made by the plaintiff in good faith, his
case cannot be shut out as the same would cause grave prejudice to
him. Such error can be set right only by giving a right of fresh trial to
the plaintiff. This is the objective of Order 23 Rule 1(3) clauses (a) and
(b) CPC.
23. Learned counsel for the petitioner has vehemently contended
that it was open to the plaintiff to seek amendment of the plaint
instead of seeking permission to file fresh suit. It has been contended
that incorporation of additional relief on the basis of same pleadings
could have easily been granted by the trial court by permitting the
plaintiff to amend the suit. He has contended that by allowing the
plaintiff to file a fresh suit on same cause of action, the provisions
contained in Order 2 Rule 2 CPC have been rendered redundant.
24. As has been already stated, the plaintiff on the basis of the
averments made in the plaint filed in the first suit was required not
only to seek relief of permanent prohibitory injunction but he was
obliged to seek the relief of declaration as also the relief of specific
performance of agreement on the basis of which he claimed to be in
possession of the suit land. Without seeking these reliefs his suit was
bound to fail. The provisions contained in Order 6 Rule 17 of the CPC
cannot circumvent the provisions contained in Order 23 Rule 1 CPC. If
the contention of the petitioner/defendant is accepted, then in every
case where a suit can be amended, the permission to withdraw the suit
cannot be granted. This would render the provisions of Order 23 Rule 1
CPC redundant.
25. The Legislature has vested power in the court in terms of Order
23 Rule 3 to grant permission to withdraw the suit with liberty to file a
fresh suit on the same cause of action provided the conditions
mentioned in the said Rule are satisfied. Thus, the trial court is
empowered to grant permission to withdraw the suit with liberty to file
fresh suit on the same cause of action if sufficient grounds are made
out and justice and equity demands so. The argument of learned
counsel for the petitioner/defendant is, therefore, is without any
substance.
26. The learned trial court, while passing the impugned order and
granting permission to the plaintiff to file fresh suit on the same cause
of action, has exercised its discretion on sound principles of law. The
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discretion exercised by the trial court cannot be the subject matter of
judicial review by this Court in exercise of its supervisory jurisdiction,
particularly when the said discretion has been exercised by the learned
trial court in accordance with law.
27. For the foregoing reasons, I do not find any merit in this
petition. The same is dismissed accordingly. Interim direction, if any,
shall cease to be in operation.
28. No order as to costs.
29. A copy of this judgment be sent to the learned trial court for
information.
———
†
Principal Bench at Srinagar
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