Withdrawal of suit-The term “sufficient
ground” used in second part of the provision needs to be
liberally interpreted. It is also observed that the discretion
given by the provision needs to be used for the ends of
justice. When such discretion is used by giving reasons,
the court exercising revisional power is not expected to
interfere in the order of the trial Court. The order cannot
be celled as illegal or improper. This Court holds that
there is no reason to interfere in the order made by the
trial Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.253 of 2013
Raosaheb s/o Shamrao Patwari Versus Vinod s/o Raosaheb Patwari
CORAM:
DATE
T.V. NALAWADE, J.
: 14th MARCH 2014
Citation; 2015(2) MHLJ36,2015(1)ALLMR322, 2014(5)BomCR326
order made on Exhibit 51 in Regular Civil Suit No.125 of
2008 by the Joint Civil Judge, Junior Division, Ausa. The
application filed under Order XXIII Rule 1 of the Code of
Civil Procedure for permission to withdraw the suit is
allowed by the trial Court subject to payment of cost of Rs.
5000/-. Both the sides are heard.
Regular Civil Suit No.125 of 2008 was filed for
2)
relief of partition and possession of ancestral and joint
family property. It is the case of the plaintiffs that
marriage between their mother and defendant No.1
Raosaheb had taken place in the year 1970. It is
contended that Raosaheb married with defendant No.2
when his first marriage was subsisting. It is contended
that defendant Nos.3 and 4 and a daughter are born to
defendant No.2 from Raosaheb but they cannot be called
as legitimate children. It is contended that to deprive the
plaintiffs of the suit property, the defendant Nos.1 and 2
joined their hands and they created false record of
maintenance proceeding and by using the order they
created
charge
on
the
joint
family
property.
It
is
contended that the suit was collusive in nature and so the
decision is not binding on the plaintiffs. It is contended
that to defeat the claim of the plaintiffs in respect of the
suit property some portion of the suit property was sold to
defendant No.5 by defendant No.1 but that transaction is
also sham and bogus and it is not binding on the plaintiffs.
The plaintiffs had claimed two-third share in the suit
property.
Defendant Nos.1 to 4 filed written statement
3)
together to contest the suit. They denied that mother of
the plaintiffs had married with defendant No.1. It is their
contention that marriage between defendant Nos.1 and 2
took place in the year 1970 and after that defendant No.1
had come in contact with mother of the plaintiffs. It is
contended that no marriage was performed with the
4)
mother of the plaintiff by defendant No.1.
In the application at Exhibit 51 filed for
permission to withdraw the suit, the plaintiffs contended
that due to denial of relationship it has become necessary
for them to make their mother party to the proceeding
and give particulars and clarification with regard to the
relationship. It was also contended that, some suit
properties were transferred by defendant No.1 to third
parties and it was necessary to make them also party to
the proceeding. They contended that it was necessary join
sister of defendant No.3 also to the suit in view of the
nature of dispute created in the written statement.
The application at Exhibit 51 was opposed by
5)
the defendant Nos.1 to 4 by contending that the defect is
not of formal nature. It is contended that the defect goes
to the root of the matter and so permission cannot be
Learned Judge of the trial Court has held that
6)
granted.
the defect is of formal nature and in the interest of justice
such permission needs to be given. It is observed that no
prejudice will be caused to the defendants by granting
such permission. Further to compensate loss, cost of Rs.
5000/- is awarded in favour of defendant No.1.
7)
Learned counsel for the applicants has placed
reliance on the case reported as 2006(2) Mh.L.J. 693
(Rajaram Jairam Raut v. Baliram Laxman Raut). The facts
of this reported case show that the Court formed opinion
that only by making amendment the defects could have
been cured and it was not necessary to grant permission
to withdraw the suit. The facts of the present case are
altogether different.
The provision of Order 23 Rule 1(3) runs as
8)
under :-
“1. Withdrawal of suit or abandonment of part
of claim:-
(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.”
There are two pars, (a) and (b), which are
9)
apparently separate from each other. The provision shows
that grant of leave under this provision is within
discretion of the Court. While exercising the discretion the
Court is expected to see that the conditions laid down in
either part of the provision viz. (a) and (b) are satisfied if
the matter falls under one of the two grounds. The object
behind the provision is to see that due to technical defect
justice is not denied. However, the Court is also expected
to see that the other side is not unnecessarily harassed.
The formal defect referred to in the aforesaid
10)
provision is such defect that it is not affected the merits of
the case. The plaintiffs have come with the case that the
marriage between their mother and defendant No.1 was
solemnized in the year 1970 and it was subsequently
dissolved in proceeding filed by their mother. In view of
this contention they have not made their mother party to
the suit. The fact that in a proceeding filed by their
mother, the marriage was dissolved cannot be disputed
but in view of the contention that the defendant No.2
married with defendant No.1 in the year 1970 and due to
the contention that there was no marriage between
mother of the plaintiffs and defendant No.1 it becomes
necessary to frame the issue in that regard. In that case
the mother needs to join as a party to the suit. However,
from the plaint itself it can be said that non inclusion of
the mother was not fatal to the suit. The term “sufficient
ground” used in second part of the provision needs to be
liberally interpreted. It is also observed that the discretion
given by the provision needs to be used for the ends of
justice. When such discretion is used by giving reasons,
the court exercising revisional power is not expected to
interfere in the order of the trial Court. The order cannot
be celled as illegal or improper. This Court holds that
there is no reason to interfere in the order made by the
trial Court.
In the result, the civil revision application
11)
Sd/-
(T.V. NALAWADE, J.)
stands dismissed.
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