SMT. SURA BALA KAR AND OTHERS Vs. YASIN MIA
HIGH COURT OF GAUHATI
Smt. Sura Bala Kar And Others
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R.S. Bindra,J. -
(1.) Sri Yasin Mia, an Advocate by profession, filed a suit on 28th of October, 1957, in the Court of Subordinate Judge, Agartala, for possession by partition of a large number of properties mentioned in the schedule attached to the plaint. As many as 26 persons were cited as defendants. A preliminary decree for partition was passed in the suit on 22 -6 -1960. An appeal lodged against that decree by one of the defendants was rejected by this Court on 20th of November, 1967. Thereafter, the trial Court took steps for effecting partition of the various properties, by metes and bounds.
In the meantime, a large number of applications were made containing various prayers primarily arising out of transfers of certain properties by way of sales and gifts by defendants on the record. In one application moved on 22 -5 -1970 by a set of the defendants, the revision petitioners herein, the prayer made was that since the plaintiff had taken no active steps to secure partition of the properties for a long time, they should be transposed as plaintiffs to enable them to pursue the matter with vigour. Before this set of applications could be disposed of, the plaintiff Yasin Mia presented an application on 16 -6 -1970 requesting the trial Court for permission to withdraw from, the suit with liberty to institute a new suit on the same cause of action. That prayer of the plaintiff was opposed by some of the defendants, particularly who are now the revision petitioners, but the Court by its order dated 25 -6 -1970 allowed the same. The petitioners having felt aggrieved have come up in this Court to assail its validity.
(2.) This revision petition had to be heard ex parte because the plaintiff -respondent failed to put in appearance despite service. Sub -rule (2) of R. 1 of O. 23 of the Civil P. C. provides that where the Court is satisfied: -
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other 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 abandon such part of a claim with liberty to institute a fresh suit in respect of the subject -matter of such suit or such part of a claim. Ex facie the trial Court allowed the withdrawal of the suit with liberty to institute another one in terms of CI. (b) of sub -rule (2). A perusal of the order of the trial Court reveals that the withdrawal was allowed on the following grounds:
(1) That the decree "is not likely to be executed";
(2) That a number of persons, who had moved miscellaneous applications, had not filed sale deeds and gift deeds "on the strength of which they want to be added as parties to the suit and the genuineness of the said transactions is also challenged on behalf of the defendant No. 1";
(3) "It Is also an admitted fact that some of the defendants left for Pakistan for good and it is, therefore, absolutely necessary for the ends of justice that fresh evidence about the right, title and interest of the parties in the suit land Is necessary";
(4) That the suit which was filed In the year 1957 A. D. "is being dragged till today and as many as 8 petitions are filed for impleading the applicants as parties to the suit"; and
(5) There are as many as 26 defendants in the suit and it is likely that some more applications may be filed taking advantage of the absence of the defendants who left for Pakistan for good and it is not known how long it will take to dispose of the case when it is pending for the last 13 years.
The question that arises for determination is whether all or any of the grounds on which the withdrawal was permitted fall within the ambit of CL (b) of sub -rule (2). It is well settled that the expression "other sufficient grounds" used in that clause has to be construed ejusdem generis with the expression "formal defect" mentioned in Cl (a) of the sub -rule. In some judicial decisions undoubtedly opinion expressed is that the expression should be given a wider meaning but in those cases too it has been held that the grounds must be, if not ejusdem generis with "formal defect", at least analogous to it. Indeed the two expressions, "formal defect" and "other sufficient grounds", were not meant by the Legislature, In view of differing texts, to be conterminous in all respects, and the adjective "other" in the second expression positively indicates that the grounds covered by CI. (b) need not necessarily be of the nature of "formal defect". Nevertheless, it looks plain that the ground adopted to support the prayer for withdrawal must be one not affecting the merits of the case but should be one arising out of some error made in good faith by the plaintiff which can only be effectively set right by a trial de novo. If the defect is such that it can be cured by amendment of the pleadings or by addition of the necessary parties, no withdrawal in fairness to the other party to the suit should be allowed,
(3.) It is In the light of the above principles that the five grounds on the basis of which the withdrawal was permitted in the present case have to be examined to determine whether they are sufficient grounds within the meaning of CI. (b). The first ground stated by the trial Court is clearly not intelligible I cannot comprehend what "decree" the Court had in mind which it said is not likely to be executed. The petitioners herein had moved an application on 22 -5 -1970 praying that they be transposed as plaintiffs so that they could take steps for partition of the properties by metes and bounds according to the shares determined by the preliminary decree. Obviously, this set of defendants was out to implement the terms of the preliminary decree and if their prayer had been allowed and a final decree passed they would surely have executed the latter decree. Therefore, the first ground adopted by the trial Court is simply non -existent.;
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