Mohd. Naved & Ors. v. Farha Rehman

6. The said application was heard by the Trial Court, which has, vide the impugned order, permitted her to withdraw the suit with liberty to file a fresh suit, if needed.

7. This order permitting the Plaintiff to withdraw her suit and giving liberty, has been challenged in the present revision petition, under Section 115 of the CPC. Submissions of ld. Counsel for the Defendant/Petitioner

8. Ld. counsel for the Defendant submits that under an identical fact situation, the Guwahati High Court has taken a view in Pushpendra Nath Borah v. Lalit Chandra Bora 2014 Law Suit (Gau) 624, that a fresh suit would not be maintainable and so no liberty could have been granted. He submits that the same would be barred under Order II Rule 2 CPC. He relies upon the language of Order XXIII Rule 1 (3) (a) & (b) to argue that in subrule 3(b), the phrase- „sufficient grounds‟ would have to be read analogously with sub-rule 3(a) and, therefore, the said ground has to be analogous to a „formal defects‟.

9. It is his submission that in the original plaint, the Plaintiff has failed to seek partition, and now by giving liberty to the Plaintiff, the Court has C.R.P. 71/2021 Page 6 of17 permitted the Plaintiff to add reliefs qua a suit for partition, which would not be permissible in law.

10. Mr. Rudra Pratap, ld. Counsel, submits that in the abovementioned judgment of the Guwahati High Court, specific reliance is placed on judgment of the Bombay High Court in Ramrao Bhagwantrao Inamdar & Anr. v. Babu Appanna Samage & Ors. 1940 AIR (Bom) 121 (FB) wherein the entire historical background of Order XXIII Rule 3 CPC has been discussed by the full bench of the Bombay High Court.

11. He submits that the Trial Court has, in fact, in the impugned order, followed the contrary opinion of the Orissa High Court Trinath Basant Ray Vs. S.K. Mahamood, 2019 SCC Online Ori 10, and has not followed the rationale of the Guwahati High Court. Thus, it is clear there is a clear divergence of opinion between different Courts on this issue.

12. Mr. Pratap has further attempted to distinguish the judgment of the Orissa High Court in Trinath Basant Ray (supra) wherein the Division Bench of the High Court agreed with the judgment of the Supreme Court in Atul Krishna Roy v. Raukishore Mohanty AIR 1956 Ori 77 and upheld the formulation that “sufficient grounds” under Order XXIII Rule 1(3)(b) are wide enough to brace other defects as well, and is not restricted to „formal defects‟. He relies upon the judgment of the Supreme Court in Sarguja Transport Services vs. State Transport Appellate Tribunal (1987) 1 SCC 5 to draw a distinction.

13. He finally submits that the Trial Court has wrongly relied upon Beniram and ors. v. Gaind and ors. (1981) 4 SCC 209, wherein there is no discussion on Order XXIII Rule 1. Hence, according to him, the same could not have been the basis of the order of the Trial Court. C.R.P. 71/2021 Page 7 of17 Analysis and Findings

14. This Court has considered the submissions made on behalf of the Defendant/Petitioner and has perused all the judgments cited.

15. The present petition is one seeking Revision under Section 115 CPC. The scope of such a petition is limited in nature. The factual background of this case is that the parties are siblings and the Plaintiff seeks various orders in respect of her parent‟s properties including mandatory injunction and rendition of accounts, till a valid partition can be effected.

16. During the course of the proceedings in the suit, the Plaintiff-sister realised that there are other properties which ought to be included in the common kitty as well. She filed an application for amendment of the plaint, however at a later stage, instead of amending the suit, she filed an application to withdraw the suit, with liberty to file a fresh suit. The Trial Court, vide the impugned order, has allowed her application to withdraw the suit with liberty in the following terms: “Having considered the above cited judgments, this court is of the considered view that the judgment of Hon'ble Supreme Court of India in the case of Sarguja Transport Service (supra) does not apply to the present facts and circumstance of the case as it was primarily related to the applicability of the principle underlining Order XXIII Rule 1 (3) (b) of CPC in respect of writ petition under Articles 226/227 of the Constitution of India. As regards another judgment of the Hon'ble Gauhati High Court in the case of Pushpander Nath Borah (supra), wherein the court has held that permission for withdrawal may be granted by the court only if defects are found to be of form and not of substance. However, it is noticeable that in Pushpander Nath Borah (supra), Hon'ble Gauhati High Court denied the permission to the C.R.P. 71/2021 Page 8 of17 plaintiff who wanted to change the very nature of acquiring of property in question and the relief of the previous suit. Further, Hon'ble Orissa High Court in Trinath Basant Ray Vs. S.K. Mahamood, 2019 SCC Online Ori 10 while relying on the Hon'ble Supreme Court's decision in K.S. V. Kokila, (2000) 5 SCC 458, observed as under:- (13) The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first, where the court is satisfied that the suit must pay by reason of some formal defect, and the other where the court is satisfied that there are sufficient ground for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim….. Therefore, the Orissa High Courts held that other "sufficient grounds" must not be restricted to "formal defect" or defects analogous thereto and the terms is wide enough to include other defects as well since this is what the legislature had intended by putting the formal defect and sufficient grounds in two different clauses of Sub rule 3 of Order 23 of CPC. Accordingly, in view of the said contrary opinion of the Hon 'ble Orissa High Court and different set of facts of present case, the Judgment of Pushpander Nath Borah (supra) heavily relied by the defendant's side does not hold much persuasive value in the humble and considered opinion of this court. It is also noteworthy that the observations of Hon'ble Orissa High Court in Trinath Basant Ray (supra) passed in year 2019, are pertinent and offer more valuable guidance for the trial court while dealing with the scope of formal defect and sufficient grounds for allowing the plaintiff to institute C.R.P. 71/2021 Page 9 of17 fresh suit in terms of Sub-rule 3 of Rule 1 of Order 23 of CPC. The Hon'ble Supreme Court in the case of Beniram & Ors. V. Gaind & Ors, (1981) 4 SCC 209 permitted withdrawal of the suit with liberty to file a fresh suit on the same or on a different cause of action wherein a point was raised in the appeal which was not raised in the plaint. Vide said order in case of Beniram & Ors. (supra) the Hon'ble Supreme Court had allowed withdrawal wherein a different cause of action was sought to be raised by the plaintiff thereby treating the same to be a sufficient cause warranting withdrawal of the suit by the plaintiff in terms of Sub-rule 3 (b) of Rule 1 of Order 23 of CPC. Coming to the facts of the present case, the plaintiff intends to withdraw the present suit for permanent and mandatory injunction, wherein issues are yet to be framed in respect of subject matter of the present suit. Further, the plaintiff seeks the permission of the court under Order 23 Rule 1 (3) (b) of CPC for instituting a fresh comprehensive suit wherein she may be intending to seek various other reliefs including decree of partition and possession, rendition/disclosure of accounts, declaration to declare the will allegedly executed by her deceased father as null and void, mesne profit and permanent injunction as well as claim of her share in all properties of her deceased parents, which could not be made part of the suit property of the present suit for want of knowledge on part of plaintiff being a daughter of her parents at the time of institution of present suit. At this stage, the version of the plaintiff cannot be discounted, and she cannot be said to be not entitled to file fresh comprehensive suit as per prevailing law, which will be ultimately decided on the merit by the concerned competent court of law after affording fair opportunity to the defendants as well as dealing with their objections, if any. Therefore, C.R.P. 71/2021 Page 10 of17 having considered the stage of the present suit, multiple causes of action, sought to be arrayed by the plaintiff in a fresh suit and the case laws discussed above, this court in the interest of justice and for filing comprehensive suit covering all possible disputes between parties related to all subject matters even beyond that of present suit between them under relevant law, finds that there are sufficient grounds for granting permission to the plaintiff for withdrawal of present suit with liberty to her to institute a fresh suit including subject matter of the present suit in terms of Order 23 Rule 1 (3) (b) of CPC. Consequently, other pending application of any party, if any is not required to be dealt with in view of permission to the plaintiff to withdraw the present suit with liberty to file fresh one in terms of Order 23 Rule 1 (3) (b) of CPC. With above observations, the said application of plaintiff is hereby allowed. File be consigned to record room after due compliance.”

17. The reasoning of the Trial Court, as is evident from the aboveextracted order, is based on the finding that the Plaintiff wishes to file a comprehensive suit, in accordance with law, which would be decided on merits. The fact that there was an amendment application does not in any manner prevent the Plaintiff from filing a fresh suit. Mr. Pratap also fairly concedes to the fact that the plaint in this case could have been amended by the said application which was moved.

18. Order XXIII Rule 1 (3) was specifically brought in post the amendment of Order XXIII Rule 1 by section 74 of the Act 104 of 1976, titled The Code of Civil Procedure (Amendment) Act, 1976. The said Rule, prior to the amendment in 1976, read as under: C.R.P. 71/2021 Page 11 of17 “ORDER XXIII Withdrawal and Adjustment of Suits

1. Withdrawal of suit or abandonment of part of claim— (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied— (a) that a suit must fail by reason of some formal defect, or (b) that there are other 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 abandon part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. xxx”

19. The said provision was amended by the Act 104 of 1976. The provision as it currently stands, reads as under: “ORDER XXIII Withdrawal and Adjustment of Suits

1. Withdrawal of suit or abandonment of part of claim— xxx (3) 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. C.R.P. 71/2021 Page 12 of17 xxx”

20. A perusal of the unamended provision, specifically sub-rule 2(b), clearly shows that the phrase used was “other sufficient grounds”. This position has been changed by the amendment in 1976. The provision, as it currently stands, only mentions “sufficient grounds”, and is no longer qualified by the word “other”.

21. The judgment of the Guwahati High Court in Pushpendra Nath Borah (supra), which has been relied upon by Mr. Pratap, ld. Counsel, had cited the judgment of the full bench of the Bombay High Court in Ramrao Bhagwantrao Inamdar (supra). The said judgment, while analysing the unamended provision held as under: “In the Code of 1908, the only change made in the wording of Cl. (b) was the addition of “other” before the words “sufficient grounds”. In (1911) 1 MWN 105 the addition of the word “other” was held to suggest that the “sufficient grounds” must be ejusdem generis with the “formal defects” under Cl. (a). This view was accepted by Beasley J. in AIR 1925 Mad 1268. With respect, we do not think the word “other” suggests anything of the kind. It simply means “other than” the ground mentioned in Cl. (a). By way of analogy, it may be pointed out that in 49 IA 144: (AIR 1922 PC 112) their Lordships of the Privy Council interpreted the words “any other sufficient reason” appearing in O. 47,

22. In any case, in the Guwahati High Court judgment in Pushpendra Nath (supra), the Plaintiff had categorically admitted that the defect could not have been cured by way of an amendment to the plaint. This fact is contrary to the admitted position in the present case, where Mr. Pratap, ld. Counsel for the Defendant has fairly conceded that the plaint could have been amended to the effect of adding the remedy sought by the Plaintiff. Accordingly, the said decision is not applicable to the facts of the present case

23. Mr. Pratap, ld. Counsel, also placed reliance on the judgment of the Supreme Court in Sarguja Transport Services (supra). The judgment in Sarguja (supra) was rendered by the Supreme Court in the context of whether a fresh writ petition could be filed under Article 226/227, after withdrawing an earlier writ petition dealing with the same cause of action, without permission from the Court. It was in this context that the Supreme Court had held that the principle underlying Order XXIII Rule 1 of the CPC should be extended in the interests of administration of justice to cases of withdrawal of writ petitions, on the ground of public policy. This judgment did not deal with a situation where permission was sought and liberty was granted, or not granted, to institute a fresh suit or petition. The Supreme Court in this case merely emphasized on the fact that a litigant cannot abandon or withdraw petitions and keep instituting fresh petitions, without C.R.P. 71/2021 Page 14 of17 seeking liberty of the Court. Accordingly, the said decision is not applicable to the facts or the legal question that has arisen in the present case.

24. Mr. Pratap, ld. Counsel, has vehemently argued that the rationale of the Orissa High Court in Trinath Basant Ray (supra) that has been followed by the Trial Court, is in ignorance of the reasoning given by the Guwahati High Court.

25. In V. Rajendran and Another v. Annasamy Pandian through LRs (2017) 5 SCC 63, the Supreme Court was concerned only with a „formal defect‟ in the facts of the said case. The Supreme Court, although, went on to leave the question of whether sub clause (b) needs to be read independent of sub clause (a) or not, open. The Supreme Court observed:

C.R.P. 71/2021 Page 15 of17

26. The Calcutta High Court in Archana Roy v. Dipanjan Bhattacharjee, AIR 2019 Cal 165, has affirmed the view of the Orissa High Court in Trinath Basant Ray (supra) and held:

27. Recently, the High Court of Kerala, in Sabu Issac vs. Antony Chacko, (2021) 220 AIC 821, looked at all the relevant case law in respect of Order XXIII Rule 1(3), and held that “sufficient ground” in clause (b) of Rule 1(3), is a separate and distinct ground, and cannot be restrained by being read in context of a „formal defect‟. The Court held:

28. A perusal of the judgment of the full bench of the Bombay High Court, and various other judgments dealing with the erstwhile provision of the Act, shows that conflicting decisions, where some High Courts read sub clause (b) ejusdem generis with sub clause (a), and some High Courts opined against the said view, reading it merely analogously or separately, had their genesis due to the presence of the word “other”. The said word having been deleted by the 1976 Amendment to the CPC, clearly leads to the conclusion that sub-clause (a) and sub-clause (b) under Rule 1(3) of Order XXIII, as it presently stands, deal with separate categories of withdrawal – first dealing with some „formal defect‟, and the latter dealing with „sufficient grounds‟ being there for liberty to file a fresh suit to be granted.

29. This Court is of the opinion that the decision of the Orissa High Court in Trinath Basant Ray (supra) which held that the expression “sufficient grounds” in clause (b) need not be restricted to „formal defects‟, or defects that are analogous thereto, is the correct position of law, in light of the legislative history of the provision, the conflicting judgments prior to the omission of the word “other” from clause (b), and the intention of the provision to give a wide discretion to the Court to allow for withdrawal of suits, with liberty, in the interests of justice. The Supreme Court had left this issue open in V. Rajendran (supra) as the said case dealt with a formal C.R.P. 71/2021 Page 17 of17 defect. However, this Court unhesitatingly agrees with the view taken by the Kerala High Court in Sabu Issac (supra).

30. At this stage, Mr. Pratap, ld. Counsel, submits that the Plaintiff herein previously had the option of filing a suit for partition but chose not to. In the opinion of this Court, this may not be true. Though the prayers in the suit, as extracted in paragraph 4, are not happily worded, when read as a whole, the prayers clearly show that the intention of the Plaintiff is to have a valid partition in accordance with law, as is clear from prayer No.3 in the suit.

31. Accordingly, in view of the legislative history of Order XXIII Rule 1 (3)(a) and (b) of the CPC as set out above, the judgments of the Supreme Court, Orissa High Court, Calcutta High Court and the Kerala High Court, as also the fact that Mr. Pratap, ld. Counsel, fairly conceded that the plaint could have been amended, in the facts of this case, to the effect of adding the remedy sought by the Plaintiff, this Court is of the opinion that the impugned order, which gives liberty to the Plaintiff to file a fresh suit, constitutes “sufficient grounds” under order XXIII Rule 1(3)(b).

32. The present revision petition is dismissed. All pending applications are also disposed of.

PRATHIBA M. SINGH JUDGE OCTOBER 12, 2021 mw/AK (corrected & released on 16th October, 2021)