Case Note & Summary
The petitioner, Satish Daniel, was the plaintiff in O.S. No.71/2017 before the Addl. Senior Civil Judge, Raichur, seeking declaration of ownership and possession of suit properties, mandatory injunction to dismantle construction, and permanent injunction. During the proceedings, the plaintiff filed I.A.No.6 under Order XXIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908, seeking withdrawal of the suit with liberty to file a fresh suit. The ground for withdrawal was that due to oversight, the site numbers in the plaint were incorrectly mentioned, and the plaintiff failed to notice the error in describing the sites over which the defendants had actually encroached and constructed. Additionally, after filing the suit, the first defendant executed documents in favor of the second defendant, who then put up constructions. The trial court rejected the application, leading the plaintiff to file a writ petition under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka. The High Court considered the submissions of both sides. The respondents argued that the plaintiff should have sought amendment of pleadings instead of withdrawal. The High Court held that the misdescription of property due to oversight constitutes a formal defect, and the plaintiff's application was bona fide. The court allowed the writ petition, quashed the trial court's order, and permitted the plaintiff to withdraw the suit with liberty to file a fresh suit, subject to payment of costs of Rs.5,000 to the defendants.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order XXIII Rule 1 CPC - Formal Defect - Misdescription of property due to oversight constitutes a formal defect entitling the plaintiff to withdraw the suit with liberty to file a fresh suit - The trial court's rejection of the application was erroneous as the plaintiff's mistake was bona fide and not an abuse of process - Held that the plaintiff is entitled to withdraw the suit with liberty to file a fresh suit (Paras 6-8).
Issue of Consideration
Whether the trial court erred in rejecting the plaintiff's application under Order XXIII Rule 1 CPC seeking withdrawal of the suit with liberty to file a fresh suit on the ground of misdescription of property.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 24.06.2019, and allowed I.A.No.6 filed under Order XXIII Rule 1 r/w Section 151 CPC, permitting the plaintiff to withdraw the suit with liberty to file a fresh suit, subject to payment of costs of Rs.5,000 to the defendants.
Law Points
- Order XXIII Rule 1 CPC
- withdrawal of suit
- liberty to file fresh suit
- formal defect
- misdescription of property
- Section 151 CPC
