Vishwanath vs Haidarali

Nevaskar, J.—These two revision Petitions arise out of two different suits brought by mortgagees Haidarali and other against Vishwanath and Ganesh for enforcement of their mortgage securities on the basis of mortgage transactions entered into between them. Both the suits were filed on the same date. One of these suits was numbered 151 of 1950 and was filed in Civil Judge''s Court at Indore. This was later renumbered as No. 27 of 1952. The second suit was filed in District Court and bore No. 8 of 1950.

In the suit filed in the District Court one of the contentions raised on behalf of the Defendants was that the suit was barred by Section 67A of Transfer of Property Act. It was also contended that suit, was barred by the provisions of Order 2, Code of Civil Procedure. On this, an application was moved on behalf of the Plaintiffs for transfer of the suit in Civil Judge''s Court to the District Court with a view that the two suits might be consolidated and tried as a single suit.

This application was rejected by the trial Court and a revision petition filed against that order in the High Court was dismissed. Thereupon the Plaintiffs applied for withdrawal of both the suits under Order 23, Rule 1, CPC on the ground that the suits were likely to fail by reason of a formal defect and that there was other sufficient cause within the meaning of that Rule. These applications for withdrawal were opposed on behalf of the Defendants. The principal grounds of opposition were:

First The defects in these suits were not formal but were substantial and conditions for the application of Order 23 Rule 1(2)(a) were not present in them.

Second There were no sufficient grounds justifying withdrawal of these two suits within the meaning of Order 23 Rule 1(2)((b), Code of Civil Procedure.

Third The petitions for withdrawal were not signed by all the Plaintiffs.

Fourth The suit in the District Court is barred by Order 2 Rule 2, CPC and it could not be permitted to be withdrawn.

All these contentions were overruled by both the Courts and each of the suits was allowed to be withdrawn.

The Defendants have preferred separate revision petitions against each of these orders in two separate suits.

A preliminary objection is raised on behalf of the opponents in each of these revision petitions that each of the courts below had jurisdiction to decide whether conditions for the applicability of Order 23, Rule 1, CPC existed or not. It having decided that it cannot be said that they acted without jurisdiction. They farther heard the applicants and allowed to have their say. It cannot therefore be said that they acted with material irregularity in the exercise of its jurisdiction.

No rule of law has been pointed, out which prevented the Courts specifically from acting in the manner they did. It cannot therefore be said that they acted illegally in the exercise of their jurisdiction. If at all the decisions might involve error of judgment for which no revision petitions are contemplated by Section 115, Code of Civil Procedure. Reliance in this connection is placed upon the decisions reported in ''Ishar Das v. Ayu Ram'' AIR 1932 Lah 360 (A), Syed Sadeq Reza Vs. Nawab Asaf Kader Syed, ; ''Hridyanath Roy v. Ram Chandra'' AIR 1921 Cal 34 (FB) (C).

In the first place I shall consider whether the defect contemplated in these two suits is a formal one or not, and secondly whether in case it is held that the decisions of the lower courts on the point are erroneous can they be said to be without jurisdiction.

As far as I can see the defect pointed out on behalf of the Defendants in these suits based on the provisions of Section 67A of the Transfer of Property Act is one of form and does not refer to merits or the substance of the rights sought to be enforced. They rather refer to the mode in which the suit ought to be constituted.

In fact it is plain to me that if the Court throws out the suits as being contrary to Section 67A of the Transfer of Property Act this only means that the Plaintiff has to reconstitute his suit properly and even without a permission as contemplated under Order 23, Rule 1, he can file his suit after properly constituting the same. The decision will involve that the suits were improperly entertained. In -''Robert Watson and Co. v. Collector of Rajshahye'' 13 Moo Ind App 160 (P.C.)(D), Sir James Colvile delivering the decision of the Board observed as follows:

There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of paries or of the matters in contest in the suit, to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit.

In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them.

Mr. Pande''s contention that non-joinder of causes of action required by specific and special provision of law to be joined together is not a formal defect. I am unable to accept this contention, I therefore, hold firstly that the defect in the constitution of the suits contrary to the provision of Section 67A of the Transfer of Property Act is a defect of form. It does not touch the merits of the case. In fact such suit if filed must on objection being raised allowed to be withdrawn with liberty to bring fresh suit in the manner contemplated by law.

The provisions are not intended to thwart the Plaintiffs by means of a game of hide and seek merely because the suits were filed by ignorance or mistake.

Moreover where the lower court grants permission under Order 23, Rule 1, CPC it cannot be said to involve want of jurisdiction even if there be error in exercising that power. This appears to have been held in AIR 1921 Cal 34 (FB) (C). There is therefore no error pertaining to jurisdiction and the revision petitions are not competent vide (A) and Syed Sadeq Reza Vs. Nawab Asaf Kader Syed, . Nor can it be said that there is any illegality or material irregularity in the exercise of jurisdiction.

As I have held that the defect is a formal one it is unnecessary to consider what amounts to sufficient cause and whether the latter phrase has got to be read ''Ejusdem Generis'' as held in - Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, .

As regards the third contention in my opinion that has no force because petitions of withdrawal are signed by all the Plaintiffs except one for whom Mr. Datta, his counsel has signed.

As regards the fourth ground in the first place the suit being on the basis of different and separate transactions no question of Order 2 Rule 2, CPC arises. But even assuming there was any such defect that by itself would be a ground for permitting withdrawal of the suits as held in -''K.E.A.K.A. Sahib and Co. v. K.M. Adamsa'' AIR 1924 Rang 249 (F).

In my opinion for the reasons discussed above there is no force in these revision petitions. They are, therefore, dismissed with costs.