Case Note & Summary
The case arises from a civil revision application filed by the original defendant, Kashinath Badhe, challenging an order of the trial court dated 07/01/2015. The non-applicant/plaintiff, Vishnu Kolte, had filed Regular Civil Suit No. 107 of 2009 seeking a declaration that the construction made by the defendant on a 4 feet wide road was illegal and for its demolition, along with a declaration of his easementary right by prescription over the road. The defendant filed a written statement denying the claim and contending that two other persons were also using the road and were necessary parties, and that the map filed by the plaintiff was not to scale. Issues were framed on 08/06/2010, and the plaintiff filed his affidavit-in-lieu of evidence on 22/11/2012. On 24/10/2013, the plaintiff filed an application under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908, seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The grounds were that the map filed was prepared by the plaintiff himself and not to scale, there was no prayer regarding absence of permission from the Grampanchayat, and no prayer seeking declaration that the way did not belong to the defendant. The plaintiff stated that due to these defects, the suit was likely to fail. The defendant opposed the application, arguing that granting it would cause prejudice and take away rights accrued in his favour. The trial court allowed the application, holding that the map was not to scale and the area under encroachment was not indicated, and necessary prayers regarding ownership rights were missing, thus constituting a formal defect. The defendant filed the present civil revision application. The High Court examined the scope of Order XXIII Rule 1(3) and found that the trial court's order was based on a reasonable assessment of the defects as formal in nature. The court noted that the plaintiff had not yet led evidence and the suit was at an early stage. The High Court held that the trial court had not committed any jurisdictional error or material irregularity warranting interference under Section 115 CPC. The revision application was dismissed, and the trial court's order was upheld.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order XXIII Rule 1(3) CPC - Formal Defect - The plaintiff sought withdrawal of suit on ground that map filed was not to scale and necessary prayers were omitted - Trial court permitted withdrawal holding that these defects were formal in nature - High Court upheld the order, finding no jurisdictional error or material irregularity - Held that the trial court's discretion was properly exercised (Paras 1-8).
Issue of Consideration
Whether the trial court was justified in permitting the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the civil revision application, upholding the trial court's order dated 07/01/2015 permitting the non-applicant to withdraw the suit with liberty to file a fresh suit on the same cause of action.
Law Points
- Order XXIII Rule 1(3) CPC
- withdrawal of suit with liberty to file fresh suit
- formal defect
- non-joinder of parties
- defect in map
- incomplete prayers
