V.K.JHANJI, J. - (1.) THIS is defendants' revision petition directed against the order of the trial Court whereby application of plaintiff for withdrawal of suit with a liberty to file fresh suit on the same cause of action, was allowed.
(2.) IN brief, the facts are that plaintiff (respondent herein) filed a suit for declaration and permanent injunction on 14. 2. 1985 against the defendants (petitioners herein) claiming itself to the owner in possession of suit property and restraining the defendants from interfering in its possession over the same. As per the case of the plaintiff, suit property was initially vested with Board of Foreign Mission of Presbyterian Church and was managed by Pb. Synod of UCNI on behalf of the Board and after 1956 UCNITA became the property holding body. In 1970, UCNI united with 5 other churches to form church of North India and thereafter CNI became the beneficiary of UCNITA. The defendants (petitioners) appeared in the suit and contested the same by way of filing their written statement dated 10. 6. 1985, wherein it was stated that in view of judgment dated 30. 9. 1982 passed by Addl. District Jugge, Chandigarh, there is no merger of 5 churches with UCNI in 1970 to form CNI as has been wrongly claimed in the suit and thus, CNI is not beneficiary of UCNITA. Further, it was stated that initially, the properties in India were managed by the various Missions to each part of the country, which were acquired by Missionary of the Presbyterian Church and under the plan of Integration of 1956, the Pb. Mission of the Presbyterian Church merged into UCNI. Pb. Synod at Synod level and in the year 1964 at all other levels; therefore, Foreign Board of the Presbyterian Church lost its identity at the Synod level and completely merged with UCNI Prior to 1956 merger, UCNITA was appointed as its agent by the UCNI to hold its properties. However, this Agency came to an end and a defunct body after the merger of Pb. Mission of the Presbyterian Church into the UCNI Pb. Syno and thereafter, under the plan of Integration, a joint committee of erstwhile Pb. Mission members and that of UCNI was formed who managed and held the properties jointly. In this view of the matter, the suit property as well as other properties in whole of the area covered under the Pb. Synod are in possession, control and management of Pb. Syno and its church councils and the tenants sitting therein are tenants under UCNI Pb. Synod and are paying rent to it. A detailed replication to this written statement was filed by the plaintiff on 20. 10. 1985 denying all the averments made in the written statement and reiterating that of the plaint, and further stating that UCNI Pb. Synod is not a necessary party to the suit. Issues in the suit were struck on 14. 2. 1986 and the case was adjourned to 21. 3. 1986 for plaintiff's evidence. Thereafter, till 28. 5. 1983, i. e. passing of the impugned order, as many as 50 adjournments were granted to the plaintiff to produce its evidence, in a period of more than seven years, but during this period, plaintiff has examined only three witnesses and that top without completion of examination-in-chief as the same remained deferred for one reason or the other. For the examination-in-chief of PW-3 alone, 16 adjournments were allowed and during this period, statement of P. W. 3 was recorded in part and the same is yet to be concluded. It may also be noticed at this stage that during the pendency of suit, plaintiff had applied for amendment of the suit, which was allowed and amended suit was filed on 23. 10. 1989. While seeking amendment, no effort was made by the plaintiff to remove the preliminary objection. Which had been taken by the defendants. It was on 3. 5. 1994 that plaintiff filed an application before the trial Court to withdraw the suit, with permission to file fresh one on the same cause of action, on the ground that defendants have raised two preliminary objections, namely, that the defendants are the authorised office-bearers of the UCNI Punjab Synod and the said society has authorised the defendant to act in its name and on its behalf and they have alleged that no suit individually against the answering defendant is maintainable and according to the defendants, the UCNI Punjab Synod is a necessary party to the suit. The other objection was that the plaint is vague and indefinite in material particulars. It was on these objections that the suit was sought to be withdrawn with permission to file a fresh one in respect of subject-matter of suit. In the application, these objections were called as formal defects in the plaint. The application, on contest, was allowed by the trial Court. This order is now being impugned by the defendants in the present revision petition. Learned counsel for the petitioners has submitted that mere objections taken by the defendants in the written statement as to the existence of defects, are not enough to grant permission to the plaintiff to file fresh suit on the same cause of action. According to the counsel, application of the plaintiff not only has to specify the formal defects in the suit which are likely to lead Jo dismissal of suit, but the Court is also required to satisfy itself that the suit must fail by reason of some formal defect pointed out in the application. In answer to this, learned counsel for the respondent has contended that it is not necessary that in every case, plaintiff must be asked to remove defects by way of amendment, because if that is accepted, it would render Order 23 Rule 1, Code of Civil Procedure, obsolete. In support of his contention, he has relied upon a judgment of this Court in Kanhyia Lal and Anr. v. Nathu and Ors. , (1989-2) 96 P. L. R. 449.
(3.) AFTER hearing learned counsel for the parties, I am of the view that order under revision cannot be sustained and the revision petition deserves to succeed. Rule 1 (3) of Order 23, Code of Civil Procedure, empowers the Court to permit the plaintiff to withdraw from the 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, after the Court is satisfied that a suit must fail by reason of some formal defect and that, there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of such suit or such part of the claim. There is no dispute with the proposition as contended by counsel for the respondent and as laid down in Kanhyia Lal's case (supra) that the provisions or Order 6 rule 17, Code of Civil Procedure, have to be read as not to make Order 23 rule 1, CPC, redundant. It is correct that the Legislature has thoughtfully provided in Order 23 rule 1 (3) that the Civil Court has jurisdiction to grant permission to withdraw the suit with liberty to file a fresh suit on the same cause of action, where it is satisfied that the formal defect pointed out by the parties may result in dismissal of the suit. The trial Court can also grant permission to withdraw the suit for other sufficient grounds where justice and equity demand. However, in the present case, justice and equity demand otherwise. The trial Court while allowing the application has just reproduced the statute without discussing any formal defect, muchless its satisfaction thereon. This shows that the Court has failed to apply its mind while forming an opinion that there are material defect in the application which would result in dismissal of the suit. It was imperative upon the Court to come to a positive finding that the suit of the plaintiff suffers from such formal defects which would prove fatal. The suit was filed as far back as year 1985. More than 50 adjournments were granted to the plaintiff to produce its evidence, but despite that, plaintiff could examine only three witnesses and that too, without completion of examination-in-chief. It appears that provisions of Order 23 Rule 1, C. P. C. have been resorted to, for disposing of an old suit. The object of the rule is not to enable the plaintiff, after he has failed to conduct his suit with proper care and due diligence, to obtain an opportunity of commencing the trial afresh in order to avoid result of his previous bad conduct of the case so as to prejudice the other party.;