CR No. 76 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 76 of 1993 Date of Decision: 22.10.2008 Amar Singh ....Petitioner Vs. Kashmiri Lal ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.J.K.Goel, Advocates, for the petitioner. Vinod K.Sharma,J. This revision petition is directed against the order dated 12.12.1992 passed by the learned Additional Senior Sub Judge, Guhla allowing an application of the plaintiff respondent for withdrawal of the suit with liberty to file fresh one on the same cause of action. The plaintiff respondent sued the defendant to seek a decree for mandatory injunction directing the defendant petitioner to appear before the Sub-Registrar Guhla for attestation and registration of mortgage deed dated 14.5.1985 allegedly executed by the petitioner defendant in favour of the plaintiff respondent in respect of the land measuring 12 Kanals 10 Marlas. The petitioner allegedly executed a mortgaged deed with CR No. 76 of 1993 2 possession in favour of the plaintiff respondent after the receipt of consideration price of Rs.26,000/-. The said mortgage deed was presented for registration before the Joint Sub-Registrar, Guhla on 14.5.1985 when the petitioner refused to appear before the Joint Registrar, Guhla. Joint Sub Registrar, Guhla forwarded unattested mortgage deed to Sub-Registrar, Kurukshetra for further guidance. Sub Registrar, Kurukshetra directed the Joint Sub Registrar, Guhla for issuance of notice to the executor defendant and also pointed out that unattested deed can be returned to the plaintiff on 14.9.1985. The respondent plaintiff took back the original unattested mortgage deed and representation for attestation to the Hon'ble Sub Registrar, Guhla on 12.9.1985. Notice issued to the petitioner was received back unserved. However, on the date fixed the court was not held due to some administrative work. However, on the next date on 25.9.1987 plaintiff respondent was informed by the Reader of the Joint Sub Registrar, Guhla that his application stands dismissed. An application for restoration was also not considered. The plaintiff respondent thereafter made a complaint against the Joint Sub Registrar on the administrative side. It is the case of the plaintiff respondent that on the complaint inquiry was directed to be conducted which was not fairly conducted. The plaintiff respondent, therefore, prays for decree for mandatory injunction directing the petitioner to appear before the Sub Registrar, Guhla for attestation and registration with mortgage deed dated 14.5.1985. The suit was contested by the petitioner alleging therein that CR No. 76 of 1993 3 the petitioner had never agreed to mortgage his land for consideration at the price of Rs.26,000/- nor any mortgage deed was executed. The petitioner claimed that the father of the plaintiff respondent had been obtaining thumb impressions of the defendant on false pretext and the same might have been used in collusion with the petition writer. Issues were framed on 22.8.1987. The plaintiff examined his witnesses in support of his case. Evidence was also led by the plaintiff respondent. An application was thereafter moved by the respondent plaintiff for permission to convert the suit to one for specific performance of mortgage. In the alternative, prayer was made that he be permitted to withdraw the suit and file fresh one on the same cause of action to seek a decree for specific performance. The application moved by the plaintiff respondent was contested by the petitioner herein and it was claimed that the application at a stage where the case was fixed for pronouncement of judgment was not competent. It is also the case of the petitioner that objections with regard to the maintainability of the suit were taken in the written statement but in spite of that the plaintiff respondent had taken no steps to correct the same and the application now moved was to fill up the lacuna in the case. The amendment was also opposed on the plea that the form of the suit would stand changed. The plea that the suit now would be barred by limitation was also taken and it was claimed that prayer for amendment be rejected. Prayer for withdrawal of the suit to file a fresh one on the same cause of action was also opposed. It was pleaded that if case such a CR No. 76 of 1993 4 permission is granted the petitioner would be subjected to unnecessary and unwarranted litigation. The petitioner placed reliance on the judgment of this court in the case of Khiwan Singh etc. Vs. Atma Singh etc. 1971 C.L.J. 104 in support of stand taken. Reliance was also placed on the judgment of this court in the case of Chander etc. Vs. Gulzari Lal etc. 1979 P.L.J.584. Learned Additional Senior Sub Judge, Guhla allowed the application for withdrawal by observing that the suit contained inherent defects and the suit of the plaintiff respondent was likely to fail because the remedy of specific performance of mortgage was available to him. The court also observed that the pleadings in the suit did make out a case for the grant of decree of specific performance. However, as said relief was not claimed it could not grant such decree. The court held that it was a fit case where the plaintiff could not be allowed to suffer due to negligence of counsel and consequently allowed the plaintiff respondent to file a fresh suit on the same cause of action subject to payment of costs. Mr.J.K.Goel, learned counsel appearing on behalf of the petitioner has challenged the impugned order on the plea that in view of the specific stand taken in the written statement that the suit as framed was not competent it has to be presumed that the plaintiff respondent knew that his suit was likely to fail and therefore, provisions of Order 23 Rule 1 of the Code of Civil Procedure (for short the Code) could not be invoked to fill up lacuna in the case. In support of this contention learned counsel for the petitioner CR No. 76 of 1993 5 has again placed reliance on the judgment of this court in the case of Khiwan Singh etc. Vs. Atma Singh etc. (supra), wherein this court has been pleased to lay down as under:- “7. It is somewhat curious that the learned Additional District Judge did not mentioned the reasons, which prevailed with him for granting the plaintiffs' application. He merely mentioned in his order that since there were sufficient grounds for allowing the plaintiffs to withdraw from the suit with liberty to bring a new one relating to the same subject-matter, necessary permission was being given and the decree of the trial court was accordingly set aside. This, in my view, is not the correct method of dealing with applications of this kind. The learned Judge ought to have stated. However, the case of the plaintiffs was covered by the provisions of Order 23 Rule 1, Code of Civil Procedure. A plaintiff cannot be permitted to withdraw the suit when he knows that he would be positively lose on account of lack of proof produced by him. These provisions cannot be utilized by the plaintiff to fill up the lacunae in his case. Before granting the permission, the Court, must be satisfied that the suit might fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject-matter. Since the learned Judge in the instant case, had not applied his mind to the application made by the plaintiffs and granted the same without doing so, I thought it proper to CR No. 76 of 1993 6 examine that application myself with the assistance of the counsel for the parties. All that was stated by the plaintiffs therein was that despite their efforts upto date they had not been able to secure certified copy of the mutation of the mortgage in question effected in Pakistan on account of prevailing conditions in that country. The trial Court had dismissed the suit on the ground of limitation due to lack of documentary evidence regarding the date of the mortgage in question. It was further stated that because of want of documentary evidence the suit was not likely to succeed in appeal either and must for that reason fail. As the “appellants expect to get certified copy of the mutation of the mortgage in some reasonable time”, it was prayed that in the interest of justice they be allowed to withdraw the suit, with liberty to bring another suit regarding the same subject-matter. This, in my opinion, is hardly any reason to grant their application under Order 23, Rule 1, Code of Civil Procedure. The suit was brought in January, 1967. If uptil that date the plaintiffs could not get proof from Pakjistan,they themselves were to be blamed for that. After the entire trial had ended and their suit had been dismissed, they cannot in appeal be allowed to withdraw the said suit on the off chance that they might be able to get a certified copy of the mutation of the mortgage in some reasonable time. This was a clear case of negligence on the part of the plaintiffs. They should have got the proper proof CR No. 76 of 1993 7 well in time before filing the suit. If the difficulty is due to the plaintiff's own negligence, the Court should not permit him to withdraw the suit with liberty to institute a fresh one on the same cause of action by taking recourse to the provisions of Order 23, rule 1, Code of Civil Procedure. A litigant cannot be permitted to misuse these provisions. The learned Judge, in my opinion, acted illegally and with material irregularity in the exercise of his jurisdiction in granting the application of the plaintiffs. 8. The result is that this petition succeeds and the impugned order is set aside. There will, however, be no order as to costs. The learned Judge is now directed to hear plaintiffs' appeal on merits.” On consideration of matter, I find no force in the contentions raised by the learned counsel for the petitioner. The judgment relied upon by the petitioner can be of no help to the petitioner as the order allowing withdrawal of suit in the said case was set aside as the learned trial court had failed to make out a case under the provisions of Order 23 Rule 1 of the Code of Civil Procedure. It was also held that the plaintiff in the said case was negligent and therefore, the provisions of Order 23 Rule 1 of the Code could not be invoked to fill in the lacunae left in the case. Order 23 Rule 1 of the Code reads as under:- “ ORDER XXIII Withdrawal and Adjustment of Suits CR No. 76 of 1993 8 1. Withdrawal of suit or abandonment of apart of claim.- (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit not any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of a pleader to the effect that the abandonment proposed is, in his opinion, of the benefit of the minor or such other person. (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. (4) Where the plaintiff - CR No. 76 of 1993 9 (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3). he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect or such subject-matter of such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub- rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” The provisions of Order 23 Rule 1 of the Code show that the court can allow a party to withdraw the suit at any stage of proceedings when the suit was likely to fail for reasons of some formal defect and also on the ground that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the subject-matter of the suit or part of claim. In the present case, it be noticed that there was no negligence on the part of the plaintiff in conducting the suit and ingredient for grant of relief of specific performance was raised. However, the learned trial court came to the conclusion that the suit of the plaintiff was likely to fail because of formal defects in framing the suit as it was for mandatory injunction instead of specific performance. It was open to the court even to have allowed the amendment of the suit to convert the same into one for specific performance. However, CR No. 76 of 1993 10 keeping in view the fact that negligence on the part of the counsel was noticed, the court exercised its jurisdiction under Order 23 Rule 1 of the Code to permit the petitioner to withdraw the suit with liberty to file a fresh one on the same cause of action. The court has also given reasons for such permission i.e. to say that the suit was likely to fail on the view of technical defects of framing the suit as that of mandatory injunction. The order is, thus, in consonance with the provisions of Order 23 Rule 1 of he Code. For the reasons stated above, I find no merit in this petition which is accordingly ordered to be dismissed with no order as to costs. 22.10.2008 (Vinod K.Sharma) rp Judge