Dhandar Singh and others. vs Niranjan Kaur .

G.C.Mital, J.—Niranjan Kaur and four others filed a suit for joint possession on the basis of title to the extent of 5/12th share in the land described in the plaint against Dhandhar Singh and six others in February, 1982. The issues were framed on 29th September, 1983. The plaintiffs took long time to lead their evidence and in the earlier part of 1984 they filed an application under section 65 of the Evidence Act for permission to lead secondary evidence for proving cancellation deed of the Will dated 4.8.1971. Even in the plaint, the date of the Will was given as 4.8.1971. The secondary evidence was allowed to be led. At that stage the plaintiffs found that in fact the Will was dated 2.1.1971 and was wrongly typed as 4.8.1971. In view of this, an application was filed under Order 23 Rule 1 of the Civil Procedure Code (for short `the Code''), for permission to withdraw the suit with liberty to file a fresh suit. The trial Court allowed the application by order dated 4.12.1984. The defendants filed Civil Revision No. 792 of 1985 in this Court and J.V. Gupta, J. by order dated 3rd May, 1985 set aside the order of the trial Court with liberty to the plaintiffs to move fresh application for withdrawal of the suit in order to file a fresh suit. The defendants had also filed Civil Revision No. 2404 of 1984 against the order of the trial Court granting permission to lead secondary evidence, which revision was allowed by Pritpal Singh, J. on 14.11.1984 and a direction was issued to the trial Court to pass a fresh order after taking into consideration the provision of section 65 of the Evidence Act.

It is thereafter, that the plaintiffs filed another application under Order 23 Rule 1 of the Code for withdrawal of the suit with permission to file a fresh one on the same ground as mentioned above. The trial Court by order dated 6.11.1985 allowed the application and granted permission to the plaintiffs to file a fresh suit on the ground that the mention of wrong date in the plaint and the application for leading secondary evidence is a formal defect due to which the suit is bound to fail. The defendants have come up in revision against the aforesaid order.

Notices have been served on the plaintiffs and they are absent despite service. Accordingly, I proceed to decide this revision exparte.

Earlier, J.V. Gupta, J. had set aside the order of the trial Court largely on the ground that speaking order had not passed giving reasons. In the present order reasons have been given but if clerical mistake, had crept in the plaint and followed in the application for permission to lead secondary evidence, it could be corrected by filing an application for amendment of the plaint and the application. The suit was filed in the year 1982. The provisions of Order 23 Rule 1 of the Code have to be applied in rare cases and this power is not to be used lightly, as has been done by the Court below. The suit should not be allowed to be withdrawn with permission to file a fresh one on matters, which can be corrected by amendment of the plaint and the pleadings. Accordingly, I am of the view that the Court below exceeded its jurisdiction in granting the application.

For the reasons recorded above, the revision is allowed, the order of the Court below dated 6th November, 1985 is hereby set aside and the suit is restored to its original number. However, it will be open to the plaintiffs to move the trial Court for amendment of the plaint to correct the date as pointed out by them in their application filed under Order 23 Rule 1 of the Code, which matter shall be considered by the Court after issuing notice to the other side in accordance with law. There will be no order as to costs.