Pahara Singh and Others vs Gram Panchayat of Village Behbal Kalan and Others

Gokal Chand Mital, J.—On 12th August, 1974, Gram Panchayat of village Behbal Kalan filed a suit for declaration that the Gram Panchayat was owner of 194 Kanals and 5 Marias of land which was allotted in consolidation as bachat land and the State Government had no authority to allot the same as nazul land to other defendants. The suit was opposed and on 15th October, 1975, issues were framed. Before the evidence could start, on 26th April, 1976, the plaintiff respondent filed an application under Order 23, Rule 1 of the CPC (hereinafter called the Code) for permission to withdraw the suit with liberty to file a fresh one. Two reasons were stated in the application; first that it was wrongly stated in the plaint that it was bachat land and true facts were that it was baniar qadim and gorah deh and was being used as such for common purposes and hence came within the definition of shamilat deh with the result that the Gram Panchayat was owner thereof. The second reason was that in the written statement the contesting defendants had pleaded that the suit was bad for mis-joinder and non-joinder of parties. The trial Court by order dated 28th July, 1 976, allowed the application on both the grounds and granted the plaintiff permission to file a fresh suit on the same cause of action. Some of the defendants have come up in revision to this Court against the aforesaid order.

After hearing the counsel for the parties, I find that the order of the Court below is not sustainable. Taking up the second point first, it was a vague plea in the written statement that the suit was bad for mis-joinder or non-joinder of parties. No definite allegation was made how the suit was bad. Therefore, merely raising a frivolous plea in that behalf would not justify an order under Order 23 Rule 1 of the Code Accordingly, I am of the view that the Court below was in error in granting permission on this ground. As regards the other ground, if the Gram Panchayat wanted to rest its claim on a different basis then it could, in no case, be called a formal defect in the plaint. Order 6, Rule 17 of the Code provides for seeking the amendment of pleadings and the proper course for the Panchayat to follow was to file an application under Order 6, Rule 17 and not an application under Order 23, Rule 1 of the Code. Since the Panchayat was claiming ownership of the land in dispute, it could legitimately ask for an amendment to say that the ownership was claimed not on the basis of bachat land but on the basis that if was banjar qadim and gorah deh and was used for common purposes and hence was shamilat deh. Of course, the Gram Panchayat could succeed only on proof of the amended allegations, but by no stretch of imagination, it could be held that merely because a different plea is taken, it would amount to a formal defect within the meaning of Order 23 Rule 1 of the Code. Accordingly, the Court below was in error in allowing permission on this ground also.

For the reasons recorded above, this revision is allowed, the order of the Court below is set aside and the trial Court is directed to restore the suit on its original number and to proceed with the same with expedition. However, it will be open to the plaintiff-respondent to file an application under Order 6, Rule 17 of the Code for seeking the amendment of the plaint which application shall be decided by the trial court in accordance with the law. The parties shall bear their own costs.

The parties through their counsel are directed to appear before the trial Court on 6th April, 1981.