Civil Revision No. 4574 of 2009 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 4574 of 2009
Date of decision : December 02, 2009
M/s Glass Palace
....Petitioner
versus
IndusInd Bank Limited and another
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Arvind Mittal, Advocate, for the petitioner
Mr. Jagdish Marwaha, Advocate for the respondents
L.N. Mittal, J. (Oral)
Plaintiff M/s Glass Palace has filed the instant revision petition
under Article 227 of the Constitution of India assailing order dated
31.3.2008, Annexure P/1, passed by learned Civil Judge (Junior Division),
Chandigarh.
The petitioner filed suit against the respondents. During
pendency of the suit, the petitioner moved application under Order 23 Rule
1(3) of the Code of Civil Procedure (in short, CPC) for permission to
withdraw the suit with liberty to file fresh one on the same cause of action
on account of alleged formal defect in the suit. It was alleged that the
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defendants had raised preliminary objection in the written statement and in
view thereof, the plaintiff be permitted to withdraw the suit with liberty to
file fresh one on the same cause of action.
The aforesaid application was resisted by the respondent-
defendants. The learned trial court vide impugned order dated 31.3.2008,
Annexure P/1, declined the permission to the plaintiff to file fresh suit on
the same cause of action but dismissed the pending suit as withdrawn.
Feeling aggrieved, the petitioner has filed the instant revision petition.
I have heard learned counsel for the parties and perused the
case file.
Learned counsel for the petitioner relying on two judgments of
this Court namely Lal Singh versus Ajit Singh and another, 2008(3) RCR
(Civil) 650 and Surjan Singh versus Amarjit Singh, 1993(2) Recent
Revenue Reports, 533, contended that the application moved by the
petitioner could be allowed as a whole and could not be split into two
parts and since the trial court has dismissed the suit as withdrawn, the same
should be treated as liberty to file fresh suit as well. The contention cannot
be accepted because the trial court has specifically declined the said prayer.
However, it is correct that the application filed by the petitioner could not
have been split. The application could either have been allowed in toto by
permitting the plaintiff to withdraw the suit with liberty to file fresh one or
application could have been refused altogether. The course adopted by the
trial court dismissing the suit without granting liberty to file fresh one is
patently illegal and unsustainable.
In view of the aforesaid, it has to be determined as to whether
the petitioner has made out a sufficient ground for permitting it to withdraw
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the suit with liberty to file fresh one. Answer to this question has to be in
the negative. The suit was filed on 6.3.2002. Defendants filed written
statement on 28.11.2002 when the alleged defect in the suit came to the
notice of the petitioner. The said defect, as pleaded in the preliminary
objection by the defendants, is that plaintiff-firm being un-registered one
could not file the suit. Issues were framed in the suit on 28.11.2002 itself.
The petitioner moved application in question on 20.8.2007 for withdrawing
the suit with liberty to file fresh suit. Thus, the said application was moved
about five years after the alleged defect in the suit had come to the notice of
the petitioner. In between the plaintiff had also filed application for
amendment of the plaint. There is no explanation why the petitioner
waited for almost five years to file the application in question on the ground
of alleged formal defect in the suit after the said defect had come to the
notice of the petitioner. This Court in the case of Baru Ram versus
Baldeva, 1994(1) Recent Revenue Reports, 702, held that where the defect
had been pointed out and the plaintiff still decides to fight the suit, the
plaintiff cannot be given benefit of Order 23 Rules 1 and 2 CPC. In view
of judgment of this Court in the aforesaid case, the petitioner cannot be
granted permission to withdraw the suit with liberty to file fresh one.
In addition to the aforesaid, even on merits, the petitioner has
not made out a case for withdrawal of the suit with liberty to file fresh one.
This Court in the case of Bansi Lal Clarance versus The United Church
of Northern India Trust Association, 1995(1) Civil Court Cases 191, held
that for permitting the plaintiff to withdraw the suit with liberty to file fresh
one on the same cause of action, it is imperative upon the court to come to a
positive finding that the suit suffers from such formal defects which would
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prove fatal. The object of the rule i.e. Order 23 Rule 1(3) CPC is not to
enable the plaintiff, after he has failed to conduct his suit with proper care
and due diligence to obtain an opportunity of commencing the trial fresh.
Similarly, Kerala High Court in the case of Susheela versus
Kuttikrishnan, 1998(3) Civil Court Cases 541, held that where a fatal
defect has erupted in the institution of the suit, no liberty can be granted to
file a fresh suit. On the basis of this legal position, learned counsel for the
respondents contended that in the instant case, the plaintiff firm being un-
registered, there was fatal defect and not only formal defect in the suit and
therefore, liberty to file fresh suit on the same cause of action cannot be
granted to the plaintiff. In support of this contention, learned counsel for
the respondents has relied on a judgment of Gauhati High Court in the case
of Karni Kumar Khatri versus M/s Assam Motor Finance Co., 1989
Civil Court Cases 285, wherein it was held that non registration of a
partnership firm is not a formal defect and therefore, permission for
withdrawal of suit with liberty to file fresh suit on the same cause of action
cannot be granted under Order 23 Rule 1(3) CPC. No judgment to the
contrary has been cited by learned counsel for the petitioner.
In view of the aforesaid, it becomes manifest that the petitioner-
plaintiff has not made out a sufficient ground to permit it to withdraw the
suit with liberty to file fresh one on the same cause of action.
In view of the aforesaid discussion, impugned order dated
31.3.2008, Annexure P/1 passed by learned Civil Judge (Junior Division) is
set aside and the application moved by petitioner-plaintiff under Order 23
Rule 1(3) CPC is dismissed. The suit stands restored to the files of the trial
court for proceeding with the suit for decision, in accordance with law.
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Parties are directed to appear before the trial court on
12.1.2010.
The instant civil revision stands disposed of accordingly.
( L.N. Mittal )
December 02, 2009 Judge
'dalbir'