Harikrishna Agarwalla vs State of Orissa and Another

S.K. Ray, A.C.J.

The Plaintiff is the Appellant in this second appeal. He lost his suit in both the Courts below. He has filed the suit for a declaration that the Defendants have no right to disconnect the water supply to his premises and for a permanent injunction restraining them from exercising'' such alleged right.

The Plaintiff is a consumer of water supplied by the Public Health Department at Rourkela. Originally he was registered as consumer No. 20 in the books of the Public Health Department with effect from 18-5-1962. Subsequently in April, 1969 he was allotted consumer No. 480. Two water taps had been sanctioned for him and he was liable to pay at the rate of Rs. 4/ - for the first tap and Rs. 2/ - for the second tap. Thus he was being charged with water rent at the rate of Rs. 6/ - per month. Subsequently a meter was fixed and from January, 1963 he was charged at the rate of Rs. 19. 17 paise towards water consumption: From January, 1963 till May, 1965 he was charged with water rent at the rate of Rs. 201- per month. Consequently having paid water rent at the rate of Rs. 20/ - per month he had paid an excess of Rs. 392/ - over the normal rate of Rs. 6/ - per month and: demanded refund of the amount, which is pending consideration'' of the Public Health Department. The meter that was fixed in his premises was getting out of order from time to time. First it went out of order in April, 1962 and started working from January, 1963 till February, 1963 and then went out of order. Again It worked from May, 1965 till April, 1966 and thereafter failed to function. On 12-5-1969 a bill was sent to the Plaintiff for a sum of Rs. 1,677.51 as water rent for the period from May, 1966 to April, 1969 which had been computed on the basis of average meter reading for six months preceding May, 1966. The Plaintiff disputed this demand contending that the meter'' was not working properly and was giving faulty reading, and made representation to that effect. Without properly dealing with his representation, the Assistant Engineer, P.H.D. sent the) aforesaid bill on 12-5-1969 threatening to cut off water supply connection if the bill amount was not paid within seven days of the notice. He, therefore, filed the present suit for the aforesaid reliefs.

The main plea of the Defendants is that they have never charged the Plaintiff any excess amount nor realised any excess amount from him. The Plaintiff grossly defaulted in paying up the charges in spite of repeated notices of the Department and in spite of his undertaking to do so.

The Plaintiff, however, did nor examine himself nor any other witness on his side. On behalf of the Defendants only the Sub-Divisional Officer. Public Health Department was examined as d.w. 1. Some documents were filed by both sides. Both the Courts below dismissed the suit. The plea of the Plaintiff has been discarded mainly on the ground that he did not choose to examine himself and make a statement in support of his plea on oath. The onus was clearly on the Plaintiff to prove his case, which he has manifestly failed to discharge. On the sale ground that the Plaintiff has failed to examine himself and prove his case he is bound to be non-suited, specially when factual pleas of the Plaintiff are not admitted by the Defendants. Faced with this dilemma the Plaintiff-Appellant has now filed an application under Order 23, Rule 1, CPC for permission to withdraw his suit with liberty to institute a fresh suit in respect of the same subject-matter. This application has been strongly resisted by the Respondents.

Plaintiff has an absolute right to withdraw his suit unconditionally provided that the Defendant has not acquired any right by reason of adjudication of Court. But in order to grant him liberty to institute a fresh suit the Court must be satisfied either that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the Plaintiff to institute a fresh suit for the same subject-matter. The words ''formal defect'', even given a wide and ''liberal meaning, can connote only every kind of defect which does not affect the merits of the case. Default on the part of the Plaintiff to examine himself or any other persons to establish his case, the initial onus being clearly on him, directly relates to the merits of the case and cannot be deemed to be a formal defect. So on this ground he cannot be granted permission to file a fresh suit. It is next to be seen whether the Plaintiff can invoke the other ground, viz: "other sufficient grounds". There is divergence of opinion as to whether ''other sufficient grounds'' can or cannot be read as analogous with ''formal defect''. Some High Courts have held that the expression ''other sufficient grounds'' should be interpreted as ejusdem generis with ''formal defect''. But this Court has held in the case of Atul Krushna Roy Vs. Raukishore Mohanty and Others, that there is no justification for restricting the meaning of the words ''other sufficient grounds'' to formal or analogous defect and that it would bring within its sweep other defects also. While saying that his Lordship also declared that be was not prepared to go as far as to say that the Court has absolute power to grant leave in every case where it considers a ground to be sufficient. In that case the suit was bound to fail on account of the Plaintiff''s counsel failing to incorporate a prayer in the plaint for dissolution of the partnership. Such a defect in the suit was considered to be one coming within the expression ''other sufficient grounds''. From this it appears to me that his Lordship never meant that mere inability of the Plaintiff to prove his case is a sufficient ground within the meaning of Order 23 Rule 1, Sub-rule (2)(b) for giving him leave to withdraw with liberty to institute a fresh suit. His Lordship, however, dissented from an earlier single Judge decision of his Court to the contrary in the case of Barak Khan v. Shakoor Muhammad 20 (1954) C.L.T. 643. But in a later case of this Court in the case of Dwaraka alias Dwarka Prasad Agarwala and Anr. v. Mst. Sashiprabha Gountiani 32 (1966) C.L.T. 864 this Court while considering the scope of the expression ''formal defect'' in Order 23 Rule 1(2), CPC stated that failure of the Plaintiff to prove his case is not a ground for allowing the Plaintiff to withdraw his suit under Clause (2). To such a case none of the sub-clauses of Rule 1(2) will be attracted. In saying so his Lordship relies upon a decision of the Privy Council in the case of Watson v. Collector of Rajashabe 15 Moor''s Indian Appeal 160. Same view has been taken also in another case of the Privy Council, that is the case of Charles J. Wills and Ors. v. The Central Railways Company of Canada AIR 1914 P.C. 149 where referring to Order 23, Rule 1, CPC their Lordships have said:

It cannot bit a matter of right that a Plaintiff having put in issue damages already accrued and having attempted to prove them and failed should be at liberty to bring a fresh action in respect of them....

Therefore, it can be safely said, so far as this Court is concerned, that failure of a Plaintiff to prove his case by examining himself or other witnesses would not constitute a sufficient ground for the purpose of giving him liberty to file a fresh suit. This is exactly what has happened in this case. The Plaintiff has failed to prove his case by not examining himself or other witnesses in substantiation of his case. Therefore, he is not entitled to be given liberty to institute a fresh suit. As already said, his prayer for permission to withdraw his suit cannot be resisted as rights of any other party is not going to be affected by reason of any adjudication of the Courts below.

In result, the Plaintiff is permitted to withdraw his suit, but his prayer for liberty to file a fresh suit IS rejected. The effect of such withdrawal is that the suit must be dismissed. Accordingly, this appeal also fails and is dismissed but in peculiar circumstances of this case each party will bear its costs thought.