- (1.) The plaintiff-respondent No. 1 filed a suit for declaration against the present petitioner and defendants-respondent Nos. 2 to 8, to the effect that she was the owner in possession of the suit property. A permanent injunction was also claimed restraining the petitioner and defendant-respondent Nos. 2 to 8, from interfering with the peaceful possession of the plaintiff-respondent. The defendants, in their written statement, contested the suit and raised a number of usual preliminary objections that the plaint did not disclose a cause of action, it was not properly valued for the purpose of Court-fee, some of the defendants were minors, but they had been shown as major and had been impleaded as such and that the suit was not maintainable in the present form. The plaintiff-respondent in her replication controverted the same and reiterated the averments in the plaint. Issues were framed and the suit was at the stage when the plaintiff-respondent had been ordered to adduce his evidence that the plaintiff-respondent after a lapse of one year and about two months from the date of the institution of the suit filed an application under Order XXIII Rule 1, Code of Civil Procedure (hereinafter called the Code), for withdrawal of the suit with permission to file a fresh one on the same cause of action. On this, the following order was passed on October 24, 1977 : "Pr C. 1 for the parties C.I. for the plaintiff has moved an application for withdrawal of the suit with permission to file a fresh suit on the same cause of action. Notice given to the C 1. for the deft. I have gone through the pleadings of the parties. There are formal defect (defects?) in the suit, because according to the objection raised by the defendants themselves the suit is not maintainable in the present form. In these circumstances I grant the necessary permission of (on?) payment of Rs. 50/- as costs. The suit is allowed to be dismissed as withdrawn with permission to file a fresh suit on the same cause of action. File be consigned to the Record Room."
(2.) This order has been challenged in the present revision petition on the ground that the same was not a speaking order and the trial Subordinate Judge did not apply his mind at all to the Scope and ambit of Order XXIII Rule 1(3), under which the impugned order could be passed and, consequently, the impugned order was without jurisdiction. The said sub-rule is reproduced below : "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." Its perusal makes it clear that before the order allowing the suit to be withdrawn with permission to file a fresh suit is passed, the following essential ingredients must be fulfilled; (1) The Court must be satisfied that the suit suffers from some formal defect; (2) The suit must fail on account of the said defect and (3) or, in the alternative, there was sufficient ground for allowing the plaintiff to file a fresh suit for the same subject-matter of the suit. Unless the Court applies its mind regarding these conditions, and comes to the conclusion that the same were satisfied, it has no jurisdiction to allow the suit to be withdrawn with liberty to file a fresh suit on the same cause of action or in respect of the same subject-matter. However, if only the suit is to be withdrawn without any permission to file a fresh suit on the same cause of action, the plaintiff is entitled to do the same at any time and no application of mind or the exercise of judicial discretion by the trial Court is necessary. In the present case, a perusal of the impugned order shows that the trial Subordinate Judge allowed the withdrawal of the suit only after coming to the following conclusion as embodied in the impugned order : "There are formal defect (defects?) in the suit because according to the objections raised by the defendants themselves the suit is not maintainable in the present form." The trial Subordinate Judge does not seem to have applied his mind at all as to what were the formal defects in the suit on account of which the suit was not maintainable and whether on account of these defects, the suit was bound to fail, as required under Sub-rule (3), reproduced above. Simply because some vague objection is taken by the defendants in the written statement that the suit was not maintainable, the Court is not justified to allow withdrawal of the suit with liberty to file a fresh suit on the same cause of action. It is a matter of everyday knowledge that in the written statements in the suits while the contentions of the plaintiffs are controverted on merits, a number of pleas, vague or otherwise, are invariably taken that the suit is not maintainable. In the present case, if the plaintiff respondent found that the objections of the petitioner and defendants-respondent Nos. 2 to 8, in the written statement, regarding the maintainability of the suit were so weighty, that the suit was bound to fail on account of the same, she would have lost no time in making an application as soon as the written statement had been filed. On other hand, in the replication, all the objections raised in the written statements were controverted. Thereafter, issues were framed and the plaintiff-respondent was called upon the adduce evidence. I repeatedly enquired from the learned counsel for the plaintiff-respondent, to show from which formal defect the suit suffered and whether those defects were fatal to the suit. The learned counsel was not in a position to give any satisfactory reply. The only reply was that the learned counsel for the defendants did not object to the suit being withdrawn and that it was the case of the defendants themselves in the written statements that the suit was not maintainable in the present form. The mere raising of an objection by the defendants in the written statement does neither prove the same nor lends any weight to the contention raised. It is the imperative duty of the trial Subordinate Judge to come to a positive finding after exercising its judicial discretion that the suit did suffer from some formal defect of such a serious nature which may prove fatal. Unless this judicial duty is performed, the trial Court has no jurisdiction to allow withdrawal of the suit with permission to file a fresh one in a mechanical and casual manner. In the present case even the submission of the learned counsel for the plaintiff-respondent that the petitioner and the defendants-respondents had not raised any objection to the withdrawal of the suit was not agreed to by the learned counsel for the petitioner who emphatically stated that the defendants did not agree to the withdrawal of the suit which was clear from the fact that the costs of Rs. 50/- imposed upon the plaintiff-respondent, were not accepted by the petitioner and defendants-respondent Nos. 2 to 8. Otherwise also even acquiescence by the opposite party in such matters is not sufficient to confer jurisdiction on the Court. The intention under lying Sub-rule (3) to Rule 1 of Order XXIII of the Code, is quite clear that the satisfaction of the Court with regard to the essential ingredients mentioned therein is imperative for the Court to exercise the jurisdiction. Reference in this regard may be made to the decision in Chaman Lal v. Raj Kumar and others,1975 RajdhaniLR 261 wherein the matter has been discussed thoroughly. I am in entire agreement with the ratio of the decision therein.
(3.) From the impugned order, it is clear that the suit in this case had been instituted on August 31, 1976, and the impugned order was passed on October 24, 1977. Thus the suit had become more than a year old when the permission to withdraw the suit was granted by the impugned order. According to the instructions issued by the High Court, if any suit becomes more than one year old, the trial Court is required to justify the further pendency of the suit and the adjournments given therein from time to time. It appears to me that the trial Court instead of taking necessary effective steps to expedite the trial of the suit adopted the short cut in allowing the suit to be withdrawn in such injudicious manner so that after the filing of the fresh suit by the plaintiff-respondent, the same will be treated as a new suit. Such a practice on the part of the trial Court has to be deprecated.;