SURESHWAR THAKUR,J. - (1.) The plaintiffs had instituted a suit against the defendant/petitioner herein claiming therein a decree for declaration besides a decree for injunction with respect to the suit property. The suit was contested by defendant No.1/petitioner herein by his instituting a written statement thereto. However, during the pendency of the suit, an application cast under the provisions of Order 23, Rule 1 (3) of the Code of Civil Procedure (hereinafter referred to as the CPC), was filed by the plaintiffs before the learned trial Court. The relevant portions of the apposite application, comprised in paragraphs No.3 and 7 thereof are extracted hereinafter :- "3. That the written statement was filed and it came to the notice of the plaintiffs/applicants that in the suit, court fees has been insufficiently affixed and the proper facts of fraud have also not been narrated especially with regard to the illiteracy of the plaintiff and execution of sale deed under the garb of mortgage deed. 7. That there was a bonafide error in claiming proper relief of suit land because there was void transaction under the impression of mortgaging the land." Therein the plaintiffs sought permission of the learned trial Court, to withdraw civil suit No. 78 of 2014, with liberty being granted to them to institute a fresh suit. The application "stood" under its impugned order rendered on 31.10.2015, hence, "allowed" by the learned trial Court. The petitioner herein/defendant No.1 is aggrieved by the impugned order, hence, for begetting its reversal, he has instituted the instant petition before this Court.
(2.) The learned counsel appearing for the petitioner/defendant No.1, has contended with vigour that the impugned order is gripped with a critical legal infirmity, comprised in the fact of the learned trial Court, though proceeding "to" within the domain of sub-rule (3), Rule 1 Order 23 of the CPC, provisions whereof stand extracted herein, hence, pronounce the impugned verdict, "whereas", none of the ingredients contained therein being evidently satiated. The provisions of Order 23, Rule 1 (3) of the CPC reads as under :- "1. Withdrawal of suit or abandonment of part of claim:- (1)....................................... (2)........................................ (3) Where the court is satisfied,- (a) that the 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, ......................." He submits that the import of the mandate of clause (a) of sub-rule (3) of Rule (1) of Order 23 of the CPC, wherein a coinage occurs (that a suit must fail by reason of some formal defect,", though permits the plaintiffs to, on account of an evident defect with respect to the valuation of the suit for the purpose of jurisdiction besides with non affixation thereon of ad velorem court fees, hence, claim that "its" constituting a formal defect also hence leveraging in the plaintiffs a right "to" with the leave of the Court withdraw the suit, with a further liberty to institute it in a Court holding the apposite pecuniary jurisdiction for trying it. He further submits that defendant No.1 had contested the apposite valuation made in the suit by the plaintiffs for the purpose of jurisdiction also had hence contended that court fees in commensuration thereto, not standing affixed thereon. He also concedes that the learned Civil Judge, Senior Division, on a proper valuation of the suit being made for the purposes of jurisdiction besides ad velorem court fee standing affixed thereon by the plaintiffs, would render him incapacitated to hold trial of the instant Civil Suit. He concedes that if the apposite permission to withdraw the suit with liberty to institute it afresh, in a Court holding the apposite pecuniary jurisdiction, stood hence rested solitarily on the aforesaid anvil, thereupon, its being granted to the plaintiff would render it to fall within the domain of clause (a) to sub-rule (3) of Rule (1) of Order 23 of the CPC, "whereas", with the plaintiffs apart from the above defect also in a duly permitted fresh suit concerting to introduce a plea with respect to theirs challenging the validity of the relevant sale deed, on the score of plaintiff No.2 being illiterate, hence, hers rearing an impression that she is executing a mortgage with respect to the suit land, thereupon, it is rendered to fall within the domain of the mandate of Order 2, Rule 2 of the CPC, hence, outside the ambit of clause (a) of sub-rule (3) of Rule (1) of Order 23 of the CPC. Consequently, he submits that with the provisions existing in Order 23 of the CPC enjoining theirs being read along with the provisions of Order 2, Rule 2 of the CPC, hence, with the plaintiffs, after withdrawing the instant suit, also theirs on the apposite leave being granted to them, hence instituting a fresh suit, when would render "it" to stand barred by the mandate of Order 2, Rule 2 of the CPC, thereupon, with the order impugned before this Court, hence, infringing its mandate, warrants its being interfered with.
(3.) For appreciating the aforesaid submission made before this Court by the learned counsel appearing for the defendant/petitioner, it is imperative to extract the provisions of Order 2, Rule 2 of the CPC:- "2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." Even though, the provisions existing therein enjoin upon the plaintiff to include in the initially instituted suit/plaint, all the causes of action in respect tot he suit property also its containing a specific provision with respect to intentional relinquishments or abandonments by the plaintiff besides his intentional omissions to sue with respect to all causes of action besides to claim relief(s) in consonance therewith in the initially instituted suit/plaint, estopping him to institute a fresh suit in respect thereto. However, the provisions of Order 2, Rule 2 of the CPC "do not" create any absolute, rigid omnibus bar upon the plaintiffs to despite theirs omitting or abandoning to sue or theirs omitting to incorporate in the plaint all causes of action besides their omissions to claim all relief(s) in respect thereto, qua hence theirs being forestalled to avail the benefits of the mandate of the provisions incorporated in Order 23, Rule 1 (3) of the CPC, conspicuously when there exists concurrence inter se the mandate of Order 2, Rule 2 (3) of the CPC vis-a-vis the relevant mandate of Order 23, Rule 1 (3) of the CPC. Moreover with the defendant being unable to prima facie establish that the relevant omissions/relinquishments or abandonments "were" intentional nor when he has been able to prima facie establish that despite evident knowledge of the plaintiffs with respect to the relevant facts, theirs hence intentionally failing to incorporate them in the suit/plaint, "whereas" prima facie satiation of the aforesaid sine qua non would render its mandate attracted, contrarily, want thereof not attracting its mandate hereat. Besides with the defendant/petitioner herein not de-establishing the illiteracy of the plaintiff concerned, whereupon, hence, the relevant omissions occurred "also" renders it to be unintentional. The mandate of sub-rule (3) of Rule (2) to Order (2) of the CPC being an exception to the preceding provisions thereto also when it holds concurrence with the provisions incorporated in Order 23, Rule 1 (3) of the CPC, comprised in the fact that, it facilitates the trial Court, to accord the apposite leave to the plaintiff to sue with respect to all causes of action besides to claim all relief(s) in respect thereto "despite" his in the initially instituted plaint omitting or abandoning to sue in respect thereto. Conspicuously, with hence there occurring no conflict inter se the provisions of Order 2, Rule 2 of the CPC vis-a-vis the provisions of Order 23, Rule 1 (3) of the CPC, besides with the defendants contesting that the instant suit for want of its apposite valuation, for the purposes of jurisdiction is not triable by the learned trial Court, hence, for facilitating the effect of the rendition pronounced in respect thereto, whereupon, it would stand instituted in the apposite Court, also renders the other apposite averments made in the application being amenable for theirs being permitted to be incorporated therein. Consequently, the submission addressed herebefore by the learned counsel appearing for the petitioner is rejected. ;