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Judgment
Order dated 14.05.2015, passed by learned Sub Judge, Baramulla, on the application filed by the petitioners seeking withdrawal of the suit, is under
challenge in this revision petition.
Background of the case, as referred in the revision petition, is asunder:
(I) The petitioners filed a suit for declaration, partition and permanent injunction before the Court of learned Principal District Judge, Baramulla, which
was assigned to the Court of Sub Judge, Baramulla.
(II) The application for interim relief filed alongside the suit was rejected on 06.03.2015 on the ground of mis-joinder of necessary parties with the
observation that in case the matter is decided in absence of necessary parties, their rights and interests will be jeopardized which may lead to
multiplicity of litigation.
(III) The petitioners apprehending that since the case is at its threshold and the written statements were not filed and that the subject matter and the
cause of action will get defeated by virtue of observations made by the learned trial court regarding mis-joinder of necessary parties, filed an
application seeking withdrawal of the suit with permission to file fresh one.
(IV) The respondents were put on notice by the learned trial court and they filed objections to the application seeking withdrawal. The learned trial
court after hearing the parties, passed order dated 14.05.2016 whereby the application of the petitioners was allowed only to the extent of withdrawal
simplictor without permitting them to file a fresh suit on the same cause of action.
(V) The petitioners challenged the order dated 14.05.2016 in an appeal which was dismissed vide order dated 01.01.2016 with the observation that the
appellants have chosen a wrong forum.
(VI) The petitioners challenged the impugned order dated 14.05.2016 before this Court after a delay of 263 days. The delay was condoned by this
Court in terms of order dated 02.12.2017.
3.The petitioners have assailed the impugned order on the grounds which can be, precisely, put forth here as under:
(I) The learned Sub Judge has wrongly passed the order impugned and has committed illegality by allowing one part and disallowing other part of the
application;
(II) The impugned order has rendered the petitioners shareless without full dress trial thereby causing miscarriage of justice;
(III) The non-joinder of necessary parties is a formal defect under Order 23 of the Code of Civil Procedure and there were sufficient grounds to
institute a fresh suit but this aspect has not been considered by the trial court.
(IV) On one hand trial court has reached to the conclusion that there is no merit in the application but on the other hand has allowed the application of
the petitioners partially and straightway dismissed the suit without calling the petitioners for getting their statements recorded.
(V) When the trial court reached to the conclusion that there is no formal defect, the application ought to have been rejected and the suit allowed to
continue. By dismissing the suit, the petitioners have been rendered remediless.
(VI) The order impugned is wrong and illegal exercise of jurisdiction and the same has caused miscarriage of justice to the petitioners.
4.Learned counsel for the petitioners while substantiating his arguments relied on the below mentioned judgments:
I) Col. Anil Kak (Retd) v. Municipal Corporation, Indore & Ors. (AIR 2007 SC 1130);
II) Jagdish Chander and others v. Rahul Sharma and another (AIR 2016 J&K 38);
III) D. P. Sharma v. Bangalore Mahanagar Palike & others (AIR 2001 Karnataka 401);
IV) Hans Raj Akrot v. State of Himachal Pradesh (AIR 1989 Himachal Pradesh 43)
In “Col. Anil Kak (Retd) v. Municipal Corporation, Indore & Ors.†(AIR 2007 SC 1130) the Hon’ble Apex Court has confirmed the view
of the High Court in treating a petition under Section 115 of the Code of Civil Procedure as a case for invoking jurisdiction under Article 227 of the
Constitution of India. The Contention had been raised that since the revision could not lie, the High ought not to have invoked the power of
superintendence.
In “Jagdish Chander and others v. Rahul Sharma and anotherâ€(AIR 2016 J&K 38), revision was held maintainable regarding issue of
impleadment of the person in place of deceased persons. Reference in the case has been made of the judgment of the Hon’ble Apex Court
captioned “Shiv Shakti Co-op. Housing Society v. M/S Swaraj Developers (AIR 2003 SC 2434).
In “D. P. Sharma v. Bangalore Mahanagar Palike & othersâ€(AIR 2001 Karnataka 401)†the order allowing withdrawal of the writ petition
without permission to file fresh was set aside and the matter remitted back for passing appropriate orders.
In “Hans Raj Akrot v. State of Himachal Pradeshâ€(AIR 1989 Himachal Pradesh 43)†It was held that the Court cannot split prayer by
allowing withdrawal and refusing liberty to file fresh suit.
Perusal of the order passed by the learned Sub Judge on the application presented for withdrawal of the suit with liberty to file fresh one, reveals
that the non-joinder of parties is not taken as a formal defect in view of the law laid down by the various High Court. The contention of the other-side
has been upheld and, as such, leave declined for filing fresh suit.
Learned District Judge observed that since appeal has been filed against an order passed by the court below under Order 23 CPC, such an order
is not appealable and the appellants therein (petitioners herein) have chosen a wrong remedy not permissible under law.
Order dated 06.03.2015 passed on an application for grant of interim assistance, makes a mention of the contention raised on behalf of the
otherside and it is observed therein that it is established that some necessary parties whose rights and interests are involved in the suit property have
not been arrayed as parties and in case matter is decided in their absence, there is every apprehension that their rights and interests shall be
jeopardized and at the same time there is apprehension of multiplicity of litigation. Observation has also been made that a suit for partition and
possession having been filed has to be valued at the market value of the subject matter and there had been an attempt for evading stamp duty as per
Valuation Act. Learned Sub Judge, while underlining these points, has held that a case for grant of interim relief has not been made out, so the
application of the petitioners has been “rejectedâ€. A note has been appended at the conclusion of the order that “for the reasons discussed
above, applicants shall be at liberty to seek indulgence of any competent court having jurisdiction to try the matter afresh, in case need arises.â€
Taking an overall view of the observations of the learned Sub Judge while disposing of application for grant of interim assistance, it can be safely
deduced that the approach of the learned trial court in dismissing the suit while declining to grant leave to file a fresh one, was not just and proper. It
may also require here to be underlined that the trial court has slightly overstepped in making observations while disposing of the application for grant of
interim assistance.
Be that as it may, the opinion of the learned Sub Judge that the petitioners ought to have taken proper steps for seeking indulgence of any
competent court having jurisdiction to try the matter afresh, turning down the argument of the petitioners that in the application for withdrawal, the
relief was not a composite one and the same could be dissected, also appears to be incorrect.
In the given circumstances, a case has been made out for exercise of revisional jurisdiction. Therefore, the order dated 14.05.2015 passed by the
learned Sub Judge, Baramulla, is held to be improper and liable to be set aside and is, accordingly, set aside. Application of the petitioners seeking
withdrawal of suit is allowed and the petitioners are permitted to file fresh suit, subject to just exceptions under law.Â
Copy of the order be sent to the learned trial court for information.