- (1.) Nihal Kaur plaintiff-respondent filed the suit (from which the present proceedings have arisen) on November 19, 1968, against Gurcharan Singh petitioner and sixteen other defendants for a declaration, which mainly affects the petitioner. The suit was contested by the petitioner inter alia on the ground that it was barred on the principles of res judicata because the plaintiff-respondent had previously filed a suit for possession of the same property on January 10, 1956, wherein she had sought the leave of the Court to withdraw the same with liberty to file a fresh one, but permission to file a fresh suit was refused and the suit was dismissed with costs on February 2, 1857, by the Subordinate Judge 2nd Class, Bhatinda. On account of the abovementioned plea, a preliminary issue was framed by the trial Court on December 6, 1968, to the effect whether this suit is barred on the principles of res judicata or not. When the parties had led their evidence on the preliminary issue and the case was fixed for arguments, the plaintiff-respondent submitted an application for permission to amend the plaint and for framing an additional issue arising out of the new plea taken by amendment. That application was allowed by the trial Court and an additional issue was framed. Against the order of the trial Court, dated January 20, 1970, allowing amendment of the plaint and framing the additional issue, Civil Revision No. 187 of 1970 was filed by the present petitioner which was decided by Koshal, J., on July 20, 1971. The learned Judge dismissed the revision as withdrawn subject to the direction that the preliminary issue framed by the trial Court on December 6, 1969, should be decided before any other issue was taken up for trial and without giving the parties any further opportunity of leading evidence on the said issue. The plaintiff-respondent tried to create some confusion regarding the interpretation of the order of Koshal, J., in the trial Court. The learned Subordinate Judge thereupon made Civil Reference No. 1 of 1972 to the Court for clarification of the order of the learned Judge, dated July 20, 1971. That reference was disposed on September 8, 1972. Koshal, J., held that his earlier order was quite clear and no clarification thereof was necessary and directed that his earlier order should be complied with as it stood and the issue framed on December 6, 1969, should be decided before the case was proceeded with further. After the abovesaid clarification had been made by this Court in answer to the reference, the plaintiff made another application to the trial Court for leave to further amend the plaint. In the meantime four of the seventeen defendants, namely, Nar Singh, Mangi Singh, Baggu Singh and Mehar Singh, died during the pendency of the present suit. Though the period for bringing on record their legal representatives and for setting aside the abatement had expired, no application of any kind had been made by the plaintiff-respondent to the trial Court in that respect. An objection was, therefore, taken by the defendant-petitioner before the trial Court that the suit itself had abated on account of the death of the above-mentioned four defendants and, therefore, the question of allowing any further amendment of the plaint could arise. It was at that stage that the plaintiff submitted an application dated February 8, 1973, to the trial Court under Order 23, Rule 1 of the Civil Procedure Code for being permitted to withdraw the suit with liberty to bring a fresh one on the same cause of action. The grounds on which liberty to file a fresh suit on the same cause of action was sought have been given in the said application in the following words :- (1) "That in this suit there are impleaded 17 defendants. Out of them four defendants have died. The plaintiff seeks relief only against Gurcharan Singh son of Sher Noor defendant who is unlawfully in possession of the land of the plaintiff. The other 16 defendants are only formal defendants and no relief against all the defendants have (has) been sought. The four defendants, namely, Nar Singh, Mangi Singh, Baggu Singh and Mehar Singh have died since long and no substitutions legal representative of the defendants who are died have been made. The suit may fail due to non-impleading of the legal representatives of the defendants who have died. (These are contents of paragraphs 2 to 6 of the application). (2) "That all other defendants also excepting Gurcharan Singh are formal defendants; there being the defect of reliefs being sought against all the defendants. The suit may fail also due to this defect." (Contents of paragraphs 7 and 8 of the application). (3) "That there are other some formal defects in the suit by which the suit must fail." (Contents of paragraph 10 of the application).
(2.) Notice of the above-mentioned application of the plaintiff having been given to the defendant-petitioner, he filed a written reply, dated February 13, 1973, objecting to the grant of the application inter alia on the grounds that - (1) the suit had already abated as the plaintiff could, if at all entitled to any relief, claim the same against the other defendants particularly defendants 1, 2 and 3 who had already died; (2) it was correct that the suit was bound to fail on account of any formal defect; and (3) the plaintiff's application has not been made in goodfaith as he had filed a similar suit on the same cause of action on January 10, 1956 (copy of the plaint Exhibit D-3), and when the said previous suit was about to be dismissed on merits, an application under Order 23, Rule 1, like the present one, was moved by the plaintiff, on which plaintiff's statement (copy Exhibit D-4), was recorded, but the application was rejected by the judgment of the trial Court, dated February 25, 1957 (copy Exhibit D-1), whereafter the plaintiff had now filed the present suit in order to put the defendant petitioner to unnecessary harassment and expense.
(3.) By his order under revision, dated February 13, 1973, Shri Gurjit Singh Sandhu, Senior Subordinate Judge, Bhatinda allowed the application of the plaintiff in the following words :- "I have heard the learned counsel for the parties. It has been found that during the pendency of the suit some of defendants had died, and the plaintiff had applied for the amendment of the plaint on some grounds. Moreover, it is alleged that relief is being sought against Gurcharan Singh defendant alone and not against other defendants, whereas the present suit alleges something else. From all these circumstances, it follows that there is some legal defect in the frame of the suit and as such withdrawal of the suit becomes necessary with a view to file fresh suit. Hence the plaintiff is allowed to withdraw the present suit with permission to file fresh suit on the same cause of action subject to the payment of costs of Rs. 400/-." The defendant-petitioner has questioned the correctness of the above order in this petition for revision, on mainly two grounds - (1) that the trial Court had no jurisdiction to grant leave to file fresh suit without coming to a definite finding of the existence of any formal defect in the plaint of the present suit and no such finding has been recorded; (2) that if the suit had abated on account of non-impleading of the legal representatives of the defendants who had died pendente lite, it did not lead to any formal defect but merited dismissal thereof. At the same time if the death of some of the defendants did not result in total abatement of the suit, there was no defect of any kind in the suit being proceeded against the surviving defendants. There seems to be force in the submission of Mr. Mangat, learned counsel for the petitioner, that the above-quoted portion of the order of the learned trial Judge (even if it is read subject to the grammatical and other mistakes of language therein) does not really bring out any finding about any particular formal defect having been found to exist in the plaint of the suit. At best it means that the death of some of the defendants pendente lite and the filing of the application for amendment of the plaint by the plaintiff all the defendants though it was intended to be claimed against the defendant-petitioner alone, amounted to legal defects in the frame of the suit. I must confess that I am unable to spell out any formal defect from what is stated by the learned Senior Subordinate Judge even if it is attempted to be straightened out in the above manner. The non-impleading of the legal representatives of certain defendant who had died during the pendency of the suit would either result in abatement of the suit as a whole or against the estate of the deceased defendants alone. In either event it would not amount to a formal defect in the plaint of the suit. If the suit has abated, it has to be dismissed as such and there is no question of allowing permission to file a fresh suit if the present one cannot proceed. This is clear from the plain language of Rule 9 of Order 22 of the Code, where it is stated that when a suit abates no fresh suit shall be brought on the same cause of action. Nothing stated in Rule 1 of Order 23 of the Code enables the Court in any circumstances whatever to grant to a plaintiff permission to file a fresh suit which is barred by the express words of any other provision of the Code or any other law, such as the words contained in sub-rule (1) of Rule 9 of Order 22 of the Code. In Chhindo v. Mela Singh and others, 1967 2 ILR(P&H) 6 it has been held that the object of Rule 1 of Order 23 of the Code is not to enable a plaintiff after he has failed to initiate and prosecute his case with due care and diligence to begin the trial in Court afresh in order to avoid logical and legal consequences of his lapse and want of due care and diligence in conducting the earlier case, so as to prejudice the opposite party. Dua, J., (as he then was) held that the formal defect contemplated by Order 23, Rule 1 of the Code must not affect the merits of the case but it should have the effect of shutting out fair trial on the merits on account of an error which can only be set right by a fresh trial. This Court had in that case allowed the revision petition of Chhindo and set aside the order of the trial Court allowed the suit to be withdrawn with permission to file a fresh one. Similarly, J.L. Kapur, J. (as he then was) allowed the revision petition in Angrez Singh v. Gajjan Singh and others, 1954 56 PunLR 42 on the ground that the trial Court has no jurisdiction to allow a suit to be withdrawn with liberty to bring a fresh one merely because the plaintiff had not impleaded someone as he did not know that he was the son of a particular person or because the plaintiff had entered wrong Khasra numbers of the land in the plaint on account of the supply of wrong Fard to him, or even because proper court-fee had not been paid. It was held that those were not formal defects and the Court could not, therefore, have allowed the withdrawal of the suit with liberty to file a fresh one. Defects which go to the root of a case were held not to amount to formal defects. In Piara Ram and another v. Ganesh Dass and others, 1967 AIR(P&H) 237 a learned Single Judge of this Court held that the defect which justifies exercise of the Court's discretion in considering the question of making an order under Rules 1 and 2 of the Order 23 of the Code must be such as has the effect of shutting out a fair trial on the merits which defect arises out of some error made in good faith by the plaintiff which can only be set right by a fresh de novo trial. It was held that if the defect is due to the plaintiff's own fault, the Court would be acting illegally and with material irregularity in the exercise of its jurisdiction in permitting the plaintiff to withdraw his suit and institute a fresh one on the same cause of action. In the present case if the plaintiff intended to claim relief only against the defendant-petitioner and not against the other 16 defendants, but not amount to a formal defect in view of the law laid down in Piara Ram's case. Firstly, it is not a formal defect, secondly, it is not a defect which cannot be removed by a formal amendment of the plaint or even by the plaintiff merely making a statement in Court that she does not seek relief against the other defendants, and, thirdly, even if it is a defect, it is due to the plaintiff's own fault and that cannot be made a ground for seeking relief to file a fresh suit. Similarly, if the plaintiff has failed to bring on record the legal representatives of some of the defendants who have died during the pendency of the suit, she herself is to blame for it, and this cannot, in the light of the Law laid down in Piara Ram's case, be deemed to be formal defect or amount to a sufficient cause for allowing the plaintiff to file a fresh suit.;