NARAYAN SINGH AND ORS. Vs. GANESH SINGH AND ORS.
LAWS(ORI)-1973-1-14
HIGH COURT OF ORISSA
Decided on January 23,1973

Narayan Singh and Ors. Appellant
VERSUS
Ganesh Singh And Ors. Respondents

JUDGEMENT

B.K.Ray, J. - (1.) THIS application arises in the following circumstances. Opposite Party Nos. 1 to 14 instituted a suit for partition being T.S. No. 50 of 1965 in the Court of the Subordinate Judge, Baripada in which the Petitioners along with some others were the Defendants. Defendants Nos. 1 to 4 and 6 to 15 filed their written statements. The present Petitioners as Defendants in the partition suit pleaded that Plaintiff No. 11 was not in any way related to the family of the parties; that late Lal Singh was not the father of Plaintiff No. 11; that Lal Singh had left the village and was unheard of for thirty years and that he had died without leaving any heir by the time T.S. No. 18 of 1948 -49 was filed between the members of the other branches of the family. It was further pleaded that Lal Singh being dead could not be impleaded as a party in T.S. No. 18 of 1948 -49 and that the rights of the parties in respect of the lands described in Schedule B of the plaint had been finally decided in T.S. No. 18 of 1948 -49 and hence the decision in the said suit operated as res judicata as against the Plaintiffs including Plaintiff No. 11. On the aforesaid pleadings, the parties in T.S. No. 50 of 1965 went to trial and 3 p.ws. were examined, cross -examined and discharged in the trial Court. It was at this stage opposite part No. 1 who is Plaintiff No. 11 in the main suit filed a petition in the trial Court purporting to be one under Order 23, Code of Civil Procedure for permission to withdraw the suit with liberty to file a fresh suit in respect of the suit lands on the plea that the decision in T.S. No. 18 of 1948 -49 operated as res judicata, so far as the present suit was concerned, even though neither he nor his father was a party to the suit. According to him, this was a defect for which withdrawal of the suit was necessary. It may be mentioned in this connection that Plaintiff No. 11 in the suit out of which this application arises was not allowed to cross -examine witnesses. It is admitted by learned Counsel for both parties that against an order of the trial Court refusing to allow Plaintiff No. 11 to cross -examine the witnesses in T.S. No. 50 of 1965, because the previous decision in T.S. No. 18 of 1948 -49 operated as res judicata, Plaintiff No. 11 filed C.R. No. 335 d 1967 in this Court which was dismissed. It was observed by this Court in the said civil revision that Plaintiff No. 11 could not avoid the plea of res judicata even though he was not a party in the previous suit as he was a co -Plaintiff along with others against whom the previous decision operated as res judicata. It was further observed by this Court that Plaintiff No. 11 could withdraw the suit, viz., T.S. No. 50 of 1965 with permission to bring a fresh suit on the same cause of action, if so advised. After disposal of the aforesaid civil revision, the Plaintiff filed the application for withdrawal of the suit as mentioned above and this application having been allowed by the trial Court, the present civil revision has been filed.
(2.) MR . K.N. Sinha, learned Counsel for Petitioners contends that the bar of res Judicata in a suit is not one of the formal defects contemplated under Order 23, Code of Civil Procedure for which a Court is competent to allow withdrawal of a suit with permission to bring a fresh suit on the same cause of action. For this proposition, he relies upon the decision reported in Ramrao v. Babu Appanna, A.I.R. 1940 Born. 121 (F.B.) Chhathu Sahu v. Charu Chandra, : A.I.R. 1935 Pat. 458 and Abdul Ghafoor v. Abdul Rahman, A.I.R. 1956 All. 845 (F.B.). These decisions go to show that the expression 'formal defect ' in Rule 1(2)(a) of Order 23, Code of Civil Procedure must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merits of the case. While saying so, it has also been said that as a general rule, general words which follow particular words of the same nature take their meaning from them and are to be read as comprehending only things of the same kind as those designated by the earlier ones. In other words, the words 'other sufficient grounds ', appearing in Order 23, Code of Civil Procedure have been interpreted to cover grounds analogous to those mentioned in Rule 1(2)(a) of Order 23, Code of Civil Procedure. But all the decisions are, however, unanimous that the Plaintiff could not withdraw the suit for a defect in substance and can only be permitted to withdraw for a formal defect. The question therefore which arises for consideration is whether the plea of res Judicata raised in the suit, out of which this appeal arises against Plaintiff No. 11, is a defect in substance. Mr. J.K. Mohanty, learned Counsel appearing for opposite parties in order to bring the defect under the category (If a formal defect relies upon a decision of this Court reported in Lingaraj Mohaprabhu v. Smt. Annapurna, 1972 (1) C.W.R. 643, which in its turn has also relied upon an earlier decision reported in Atul v. Rajkishore, 1956 C.L.T. 32. In both these cases, it has been clearly laid down that where the object of the Legislature has been clearly expressed and the intention is to extend the scope of the general words, a wider meaning should be given to the succeeding words. It has therefore been held that there is no justification for restricting the meaning of the expression 'other sufficient grounds '. According to these decisions, the words are wide enough to embrace grounds which a judicial mind can consider to be sufficient for the purpose of granting leave prayed for. On the authority of the aforesaid decisions, I am firmly of the opinion that the grounds on which Plaintiff No. 11 seeks to withdraw the suit with permission to bring a fresh suit is one which comes within the scope of the words 'other sufficient grounds '. Mr. J.K. Mohanty, learned Counsel for opposite parties further urges that once a Court has exercised its discretion in allowing an application under Order 23, Code of Civil Procedure this Court cannot interfere with the exercise of such discretion in an application under Section 115 , Code of Civil Procedure even if in arriving at the conclusion on the question of sufficiency or otherwise of the grounds under Order 23 Rule 1(2)(b), Code of Civil Procedure the Court below has taken an erroneous view of law not affecting jurisdiction. For this proposition, he relies upon a decision of this Court reported in Atul v. Rajkishore, 1956 C.L.T. 32, and some other decisions.
(3.) IT is not in dispute that the Court below exercising its powers under Order 23, Code of Civil Procedure in the present case has exercised its judicial discretion vested in it. Unless it is shown that the discretion exercised by the Court below is arbitrary, it is not proper for the revisional Court to interfere with the exercise of such discretion. I have already pointed out that the defect for which Plaintiff No. 11 seeks to withdraw the suit is a defect contemplated under Order 23, Code of Civil Procedure. That being the position, the trial Court has exercised the judicial discretion vested in it properly in allowing the application for withdrawal when particularly the other Plaintiffs in the suit have no objection to the withdrawal as appears from the order of the Court below.;


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