Om Parkash vs Krishan Lal

An order passed by learned Sub Judge. Jammu, on 15th Feb., 1996, whereby the plaintiffrespondent herein was permitted to withdraw the suit

with liberty to file a fresh one, is being assailed in the present revision petition.

The learned counsel for the petitioner submits that the power could be exercised under Order 23 only where satisfaction of the court is recorded

in terms of Order 23 sub rule 3. It is submitted that this is missing in this case, and therefore, the permission granted to withdraw the suit with a

liberty to file a fresh one is not in accordance with the law.

Before proceeding further, it would be apt to notice as to what was the suit filed and what led the plaintiff to withdraw it and seek a liberty to file

a fresh one.

The plaintiffrespondent came to the court with a plea that the defendantpetitioner was licencee under him. This respondent is none but the real

brother of petitioner. It was pleaded that the plaintiff has revoked the licence, and therefore, he was entitled to regain the possession. A mandatory

as well as propitiatory injunction was sought.

The defendant petitioner filed the written statement. A plea was taken that the petitioner is not a licencee but is in possession since long. This

possession has continued for such a long period that this has ripened into adverse possession and the question of being a licencee of plaintiff does

not arise at all. The plaintiff respondent then filed an application under O. 23 R. 1 of the Civil Procedure Code for withdrawal of the suit and with a

liberty to file a fresh one. A plea was taken that there is a formal defect in the suit in as much as the defendant petitioner has set up a title in himself

and that too on the basis of adverse possession. It was accordingly prayed that the suit be allowed to be withdrawn with a liberty to file a fresh

one.

The trial court took note of this fact and permitted the plaintiff respondent to withdraw the suit with liberty to file a fresh one. As indicated

above, it is this order which is the subject matter of challenge in this petition.

There can be no dispute with the proposition that permission can be granted to withdraw the suit and liberty can also be granted with a view to

file a fresh but before this liberty is granted, the court must be satisfied that on account of some formal defect, the suit is likely to fail. The court has

again to record its satisfaction that there are sufficient grounds for allowing the prayer to institute a fresh suit. As to what are the formal defects is a

matter on which various courts have pronounced upon. The expression 'formal defect' would represent a defect of various kinds but it definitely

does not include a defect which deals with the merits of the case. See AIR 1940 Bombay 121 (F.B.), Ramrao Bhagwantrao Inamdar and another

v. Babu Appanna Samage and others. The 'formal defect', therefore, would mean a defect of form which is prescribed by rules of procedure.

Again, the court must take notice of a formal defect and a mere objection as to the existence of a defect would not furnish a ground to the court to

withdraw the suit. See AIR 1967, Pat 247, Tata Iron and Steel Works v. Arun Chandra Bose. Omission to include all the causes of action which

the plaintiff as against the defendant is definitely not a formal defect. See AIR 1914 All 457. Manbhan v. Sumer Chand. A defect which can be

removed by way of amendment would again be not a formal defect. See AIR 1989N.O.C. 193, Smt. Radha Radharani Dei Bhoi v Dibakar

Nayak and others.

In the present case, the plaintiff respondent had gone to the court with a plea that the defendant petitioner is a licencee. The petitioner however,

took an objection that he is not a licencee but is in possession of the property since long, and this possession has ripened into ownership.

Therefore, the question which was required to be gone into was as to whether the petitioner defendant was a licencee or has perfected his title

rights by way of adverse possession. This defect could very well be rectified by seeking an amendment or even without seeking an amendment by

claiming to frame an issue. This is because ultimately the question which was required to be gone into was with regard to the nature of the

possession of the defendant petitioner. The defect which has been pointed out is not a defect of procedure but a defect of pleading and would not

be a defect falling within the parameters of O. 23.

The learned counsel for the respondent has placed reliance on AIR 1964 J and K 18. Fateh Shah v. Mst Bega. It is submitted that not only a

formal defect as per procedure, but if the court is satisfied that some other fact can be considered as a formal defect, then the court can exercise its

jurisdiction in allowing the withdrawal of the suit.

It be seen that in the present case, it can be said that the trial court has exercised jurisdiction which was not vested in it. There is total

noncompliance of O. 23. The order under revision is therefore, set aside. The trial court shall proceed with the trial of the suit. The parties would

be at liberty to take such pleas and steps as advised. The plaintiff, if so advised may amend the suit. Nothing said on this aspect of the matter

would be taken as a final expression of opinion i.e. with regard to the opinion as to whether the suit is to be permitted to be amended or not.

Disposed of as such.