Kamlesh Sharma, J.@mdashThe Defendant-Appellant Daulat Ram is aggrieved by the decree and judgment dated 2nd September, 1987 passed by the District Judge, Solan and Sirmaur Districts at Nahan, whereby the appeal of Respondent-Plaintiff Smt. Janki Devi was dismissed as withdrawn on the ground that her application under Order 23, Rule 1, CPC for withdrawal of the appeal as well as the suit with permission to file a fresh suit stood allowed by a separate judgment of that day By the impugned decree and judgment, the decree and judgment dated 11th January, 1984 of Senior Sub-Judge, Solan was also set aside.
2. The Respondent-Plaintiff Smt. Janki Devi had filed a civil suit for declaration that mutation No. 142 dated 18th December, 1975 in respect of the land in dispute, as described in para 2 of the judgment of the District Judge, is illegal, null and void and not binding on her. She had also asked for relief of permanent injunction for restraining the Defendants in the suit from interfering in her possession over the land in dispute. She had claimed herself as mortgagee as well as tenant in possession of the land in dispute. In fact, initially, the suit was filed by the Respondent-Plaintiff Smt Janki Devi alongwith one Smt Shanti Devi, who was permitted to withdraw from the suit on her application dated 30th June, 1976, which she had moved jointly with Appellant-Defendant Daulat Ram admitting the gift in his favour and also his possession over the land in dispute.
3. Feeling aggrieved the Respondent-Plaintiff filed an appeal against the decree and judgment of the trial Court. During the pendency of the appeal, she moved an application under Order 6, Rule 17, CPC for amendment of her plaint to take additional plea that the Appellant-Defendant Daulat Ram had trespassed over a part of the land in dispute measuring 1 Bigha 7 Biswas in the month of October, 1986 and had also cut grass therefrom. She prayed for another relief of recovery of possession of that portion of the land in dispute and also for mesne profits with effect from the date of her dispossession. The application was resisted and ultimately dismissed by order dated 20th March, 1987 by the District Judge holding the prayer of amendment as mala fide to avoid the decree passed by the trial Court.
4. During the pendency of the appeal, one more application under Order 41, Rule 27, CPC was moved by the Respondent-Plaintiff Smt. Janki Devi for permission to produce additional evidence of copies of mutation orders in respect of the land in dispute, which according to her were not in her knowledge at the time she adduced her evidence in the trial Court. Before this application could be decided, the Respondent-Plaintiff Smt. Janki Devi moved another application under Order 23, Rule 1, CPC for permission to withdraw her appeal as well as the suit with liberty to file a fresh suit with regard to the same subject-matter. This application was also opposed by the Appellant-Defendant but failed.
5. The application under Order 23, Rule 1, CPC was allowed by the District Judge by his order dated 2nd September, 1987 holding that:
...Undoubtedly, the Plaintiff in the present case has omitted to seek declaration as to her title in the suit land due to aforesaid mistakes in claiming further reliefs available to her. The learned lower Court on the strength of the evidence given by Smt. Shanti Devi, previously a co-Plaintiff, has come to the conclusion that possession of the mortgaged land was duly delivered to the mortgagors at the time of alleged redemption. That finding may impede a fresh adjudication as to the acquisition of proprietary rights by the Plaintiff under the Land Reforms Act with regard to the tenanted land. In this view of the matter, I am inclined to hold that there are sufficient grounds within the meaning of Order 23, Rule 1(3)(b), CPC justifying grant of permission to withdraw the suit with liberty to file fresh suit on the same cause of action or on a different cause of action....
6. Thereafter by decree and judgment of the same date, the appeal was dismissed as withdrawn and the decree and judgment of the trial Court was set aside. Hence the present Regular Second Appeal.
7. This Court has heard the learned Counsel for the parties and gone through the record. At the very outset Sh. Anand Sharma, appearing vice learned Counsel for the Respondent-Plaintiff Smt. Janki Devi has raised an objection that Regular Second Appeal is not maintainable against the impugned order dismissing the appeal as well as the suit as withdrawn with permission to file a fresh suit. According to him, the impugned order/judgment could be challenged by filing a Revision petition u/s 115 of the Code of Civil Procedure. For making this submission, Sh. Anand Sharma has relied upon Bishunath v. Ram Parshad and Ors. AIR 1926 Oudh 185; Jai Indra Bahadur Singh v. Deputy Commissioner Kheri and Ors. AIR 1935 Oudh 486 and Firm Daulat Ram Vidya Prakash v. Bansi Lal and Ors. AIR 1939 Lah 472.
8. On the other hand, Sh. Sanjiv Kuthiala, appearing vice learned Counsel for the Appellant-Defendant Daulat Ram, has submitted that the appeal is maintainable because the District Judge has passed a decree on the basis of the order allowing the application under Order 23, Rule 1, Code of Civil Procedure. For making this submission, Sh. Kuthiala, has relied upon Bharat Singh v. Jawali AIR 1917 All 134 and Vilayati Khan and Anr. v. Mt. Khairunissa W/o Mohammad Server and Ors. AIR 1941 Nag 180 . In the alternative, he submits that assuming the appeal is not maintainable, it may be treated as a Revision petition, as held in the
9. This Court upholds the objection that the order dated 2nd September, 1987 dismissing the appeal as withdrawn on the basis of an order passed on the same date allowing the application under Order 23, Rule 1, CPC to withdraw the suit with permission to file a fresh suit are not appealable orders as held in Bishunath v. Ram Parshad and Ors.; Jai Indira Bahadur Singh v. Deputy Commissioner Kheri and Ors. and Firm Daulat Ram Vidya Parkash v. Bansi Lal and Ors. (supra). The judgments in Bharat Singh v. Jawali and Vilayati Khan and Anr. v. Mt. Khairunissa w/o Mohammad Server and Ors. (supra) are on the facts of those cases but their ratio is clear that order is appealable only if it amounts to decree as defined u/s 2(2), Code of Civil Procedure. In the present case, though in fact, decree was prepared by the District Judge for the order dismissing the appeal as withdrawn, on the basis of another order allowing withdrawal of the suit with permission to file afresh, yet, in law it is not a decree as it is not a formal expression of an adjudication conclusively determining the rights of the parties with regard to any of the matters in controversy in the suit. However, as laid down by the Supreme Court in The Reliable Water Supply Service of India (P) Ltd. v. The Union of India and Ors. (supra) this Court treats the appeal as a Revision petition u/s 115, CPC as there is no impediment to do so, by exercising its inherent powers to examine the challenge laid to the impugned orders that these have been passed by the District Judge by illegally exercising his jurisdiction or he has committed material irregularity in passing these orders.
10. The relevant portion of Order 23, Rule 1 CPC is as under:
1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit, the Plaintiff may as against all or any of the Defendants abandon his suit or abandon a part of his claim;
(2) xxx xxx xxx
(3) Where the Court is satisfied:
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the Plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may on such terms as it thinks fit, grant the Plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim....
In her application under Order 23, Rule 1, Code of Civil Procedure, the Respondent-Plaintiff Smt. Janki Devi has stated that:
...the suit was filed for declaration and injunction only on the matter of possession but on account of death of Shanti and non-redemption of other mortgagees and the question of this mortgage being disputed and out of this Khata the Plaintiff is the non-occupancy tenant and also owner of some property of this Khata and thus the suit being not on title qua that respect will be adversely hit by under Order 2, Rule 2, CPC and it will be in the interest of justice to allow the Plaintiff to withdraw the suit to file a fresh suit claiming all the reliefs on the basis of title to avoid multiplicity of suits and to subserve the ends of justice.
In reply, the Appellant-Defendant Daulat Ram has stated:
...All the reasons given in this para are outside the ambit of the specific provision of the Order 23, Rule 1, CPC and don''t fit within the frame work of the provisions and even changes the cause of action of the present suit. The object of the rule is not enable a Plaintiff after she has failed to conduct her case with proper care and diligence and after her witnesses have failed to support her case or for nonappearance of Plaintiff as her own witness inspite of many opportunities given to her to obtain an opportunity of commencing the trial afresh in order to avoid the result of her previous bad conduct of the case and thereby to get second innings to prove her case so as to prejudice the opposite party, ten years after commencement of the proceedings. The only pleas which have been taken by the Petitioner for the new relief could have been added by other means....
Sh. Sanjiv Kuthiala, appearing vice learned Counsel for the Appellant- Defendant Daulat Ram, has vehemently urged that the defect pointed out in the application for withdrawal of the suit with permission to file a fresh suit is not a formal defect as required under Sub-rule 3(a), Rule 1, Order 23. According to Sh. Kuthiala, the reasons given in the application are also not sufficient grounds as provided under Sub-rule 3(b) of Rule 1, Order 23, CPC which are required to be analogous to the formal defect as provided under Sub-rule 3(a) of Rule 1, Order 23, Code of Civil Procedure, may not be ejusdem generis thereto To substantiate his submissions, he has relied upon
11. Another point raised by Sh. Sanjiv Kuthiala is that once the Respondent-Plaintiff has failed to prove her case by producing evidence, she cannot be permitted to withdraw the suit with permission to file a fresh suit to give her another opportunity, which will unnecessarily prolong the litigation and also the agony of the Appellant-Defendant. Shri Kuthiala has also urged that once the Respondent-Plaintiff had failed in getting her suit amended by dismissal of her application under Order 6, Rule 17, CPC and had made an attempt to adduce additional evidence by filing an application under Order 41, Rule 27, CPC she could not be permitted to withdraw the suit with permission to file a fresh suit. For making this submission, Sh. Kuthiala has relied upon V. Narayanappa v. Narayanappa and Anr. AIR 1971 Mys 334; Pritam Singh v. Smt. Gurcharan Kaur 1971 C LJ 118 and
12. On the other hand, Sh. Anand Sharma, appearing vice learned Counsel for the Respondent-Plaintiff, Smt. Janki Devi, has urged that if the Plaintiff fails to seek appropriate relief or to sue on the strength of his title, these are sufficient grounds to allow him to withdraw the suit with permission to file a fresh suit. In support of his submission, he has cited judgments in Gurprit Singh and Anr. v. Punjab Government AIR 1946 Lah 429 ;
13. By now, it is well settled that while allowing withdrawal of the suit with permission to file a fresh suit, the Court must either point out formal defects as laid down under Sub-rule (3)(a) of Rule 1, Order 23 or must give sufficient grounds as provided under Sub-rule (3)(b) of Rule 1, Order 23, CPC in its order. So far the expression ''formal defect'' is concerned, there cannot be a dispute that this connotes defects which do not go to the root of the claim of the Plaintiff and are those defects which are formal, such as, omission to obtain permission, if necessary, or misjoinder of parties or causes of action or erroneous valuation of the subject-matter of the suit or institution of the suit in a Court which has no jurisdiction etc. etc. In other words, formal defects are those which do not effect the merits of the case but these should be fatal to the suit. So far Sub-rule (3)(b) of Rule 1, Order 23, CPC is concerned, sufficient grounds need not be ejusdem generis to formal defects. Whether these should be analogous or not, there is divergence of opinion of different High Courts The Bombay and the Allahabad High Courts in
14. Applying this test to the facts of the present case, it is evident that the case of the Respondent-Plaintiff does not fall under Sub-rule (3)(a) of Rule 1 as the defects pointed out are not formal for which the suit must fail. It falls under Sub-rule (3)(b) of Rule 1, Order 23, CPC and the sufficient ground was that the Respondent-Plaintiff Smt. Janki Devi had not asked for the relief on the basis of her title which she might have acquired under the H.P. Tenancy and Land Reforms Act in her capacity as tenant which she had claimed in her suit. Above all, this Court feels that originally the suit was filed by the Respondent-Plaintiff Smt. Janki Devi alongwith Smt. Shanti Devi who had withdrawn her claim and deposed in favour of the Appellant-Defendant that he had acquired the land in dispute and also its possession by way of a gift which made her suit to suffer with such an infirmity which could not be cured either by filing amendment of the pleadings or by adducing additional evidence. [Please see Gurprit Singh and Anr. v. Punjab Government; Brajmohan Sabato v. Sarojini Panigrahi and Anr.; Homeo Dr. T.K. Prabhawati v. C.P. Kunhathabai Umma and Ors. and Baniram and Ors. v. Gaind and Ors. (supra)].
15. The result of the above discussion is that this Court does not find that the impugned order of the District Judge is without jurisdiction or that he has committed any material irregularity in allowing the application of the Respondent-Plaintiff Smt. Janki Devi under Order 23, Rule 1, CPC for withdrawal of the suit with permission to file a fresh suit.
16. Before parting with the present case, it is made clear that the observations made during the course of this judgment will not affect the rights of the parties in the fresh suit.
Costs of this petition on the parties.
