In the present case, the suit was filed by the
respondent on behalf of a registered trust namely
Pandurang Vitthal Firm Private Limited. He ought to
have been authorised by the said trust to institute a
suit on its behalf. No such authorisation was produced
by him with the plaint. Therefore, it was held that the
respondent was not competent to file and prosecute the
suit. In my view, this is clearly a formal defect in
the suit. The valuable rights of the parties cannot be
allowed to be defeated on account of such formal
defects. Consequently, in view of the judgments cited
by the learned counsel for the respondent, which are
fully applicable to the facts of the present case, I am
of the opinion that the learned Adhoc District Judge1,
Latur rightly allowed the application (Exh15) and
rightly permitted the respondent to withdraw the suit
and file a fresh suit in respect of the same subjectmatter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 185 OF 2014
Sow. Saroj w/o Ramesh Jadhav, V Kongaree Veera Reddy,
CORAM : SANGITRAO S. PATIL, J.
Dated : 8th SEPTEMBER, 2016
Citation: 2016 (5) ALLMR 903
The original defendants in Regular Civil Suit
No. 22 of 2004 have preferred this application,
challenging the legality and correctness of the order
dated 1st January, 2014, passed in Regular Civil Appeal
No. 32 of 2010 by the learned Adhoc District Judge1,
Latur whereby the respondent (original plaintiff) has
been permitted to withdraw the said suit with liberty to
institute a fresh suit in respect of the same subject
matter.
2. The respondent instituted the above numbered
Regular Civil Suit in the Court of Civil Judge, Junior
Division, Ausa, seeking declaration of his title to the
suit property, admeasuring 11 gunthas out of the land
block No. 19/B/1, situate at village Budhoda, Taluka
Ausa and further sought perpetual injunction restraining
the applicants from disturbing his possession thereon.
The suit came to be dismissed by the learned Civil
Judge, Junior Division, Ausa vide judgment and decree
dated 9th September, 2009, mainly on the ground that the
suit property, in fact, was belonging to a firm namely
Pandurang Vitthal Firm Pvt. Ltd., which was registered
under the Bombay Public Trusts Act. However, the said
Firm had not passed any resolution, authorising the
respondent to institute the said suit and prosecute it.
The respondent preferred Regular Civil Appeal No. 32 of
2010 in the District Court at Latur against the judgment
and decree passed by the Trial Court. During pendency
of that appeal, the respondent filed an application
(Exh15) under Order XXIII Rule 3 (a) and (b) of the
Code of Civil Procedure (“the Code”, for short), seeking
permission to withdraw the suit with liberty to
institute a fresh suit in respect of the same subjectmatter
by setting aside the impugned judgment and
decree. The learned Adhoc District Judge1, Latur
allowed that application as per the impugned order.
3. The learned counsel for the applicants submits
that once the suit was dismissed by the Trial Court,
certain rights were created in favour of the applicants.
Consequently, the first appellate court was not
justified in setting aside the judgment and decree
passed by the Trial Court and allowing the respondent to
withdraw the suit with liberty to file a fresh suit in
respect of the same subjectmatter. In support of his
contention, he relied on the judgment in M.B.
Development Corporation V. Manilal Patel & Co. 2001
(Supp.) Bom. C.R. 801. He, therefore, submits that the
impugned order may be set aside and the order passed by
the Trial Court may be restored.
4. As against this, the learned counsel for the
respondent submits that the appeal being in continuation
of the suit, the judgment and decree passed by the Trial
Court had not become final due to pendency of R.C.A. No.
32/2010. It was, therefore, open to the respondent to
withdraw the suit with liberty to file a fresh suit on
the ground that because of the technical defect in
drafting the plaint, it was liable to be dismissed. He
submits that the first appellate court has rightly set
aside the judgment and decree passed by the Trial Court
and allowed the application filed by the respondent
under Order XXIII Rule 3 (a) and (b) of the Code by
granting him permission to withdraw the suit with
liberty to file a fresh suit in respect of the same
subjectmatter. In support of his contention, he cited
the judgments in the cases of (i) Ratan Lal and
another V. Mohammad Hamidulla Khan AIR 1921 Allahabad
65, (ii) Suraj Pal Singh V. Gharam Singh and others AIR
1973 Allahabad 466 and (iii) Mahendra Uttamrao Kadam and
others V. Kacchi Properties 2011 (7) ALL M.R. 386.
5. The provisions of Order XXIII Rule (3) of the
Code read as under :
(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 subjectmatter 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 subjectmatter of such suit or such
part of the claim.”
6. There is no dispute about the proposition that
the appeal is continuation of the suit and the decree
passed by the Trial Court would not become final until
the appeal is decided. As such, the application for
withdrawal of the suit can very well be filed during
pendency of the appeal. In the case of Suraj Pal Singh
(supra), the suit was dismissed and during the pendency
of the appeal, the learned counsel for the
plaintiff/appellant made an application for withdrawal
of the suit. It was observed by the Allahabad High
Court that the decree of dismissal of the suit by itself
does not confer any right on any party to the suit. In
view of these observations, the contention of the
learned counsel for the applicants herein that because
of the dismissal of the suit by the Trial Court, certain
rights have been accrued in favour of the applicants,
cannot be accepted.
7. Relying on the judgment in case of M.B.
Development Corporation (supra), the learned counsel for
the applicants submits that the respondent filed a suit
on behalf of a Firm which is not registered. As such,
the defect in the suit was not formal but was
substantive. Therefore, the suit ought to have been
dismissed and accordingly has rightly been dismissed by
the Trial Court. He submits that the suit cannot be
allowed to be withdrawn with liberty to file a fresh
suit when there is substantive defect therein.
8. As against this, the learned counsel for the
respondent relied on the judgment of the Bombay High
Court in the case of Mahendra uttamrao Kadam (supra),
wherein the suit presented by the plaintiff, which was
an unregistered firm, being not maintainable in view of
Section 69 of the Partnership Act, considering the said
defect as a formal defect, the plaintiff was permitted
to withdraw the suit with liberty to file fresh suit on
the same cause of action. In the said judgment, in
paragraph 9, there is reference of the judgment in the
case of M/s Haldiram Bhujiawala V. Anand Kumar Deepak
Kumar 2000 (3) SCC 250, wherein in the similar
circumstances, it was held that if the firm is not
registered on the date of suit and the suit is to
enforce a right arising out of a contract with the third
partydefendant in the course of its business, then it
will be open to the plaintiff to seek withdrawal of the
plaint with leave and file a fresh suit after
registration of the firm, subject of course to the law
of limitation. It is further observed that this is so
even if the suit is dismissed for a formal defect.
9. In the present case, the suit was filed by the
respondent on behalf of a registered trust namely
Pandurang Vitthal Firm Private Limited. He ought to
have been authorised by the said trust to institute a
suit on its behalf. No such authorisation was produced
by him with the plaint. Therefore, it was held that the
respondent was not competent to file and prosecute the
suit. In my view, this is clearly a formal defect in
the suit. The valuable rights of the parties cannot be
allowed to be defeated on account of such formal
defects. Consequently, in view of the judgments cited
by the learned counsel for the respondent, which are
fully applicable to the facts of the present case, I am
of the opinion that the learned Adhoc District Judge1,
Latur rightly allowed the application (Exh15) and
rightly permitted the respondent to withdraw the suit
and file a fresh suit in respect of the same subjectmatter.
The judgment in the case of M.B. Development
Corporation (supra), cited on behalf of the applicants,
in circumstances of the case, cannot be made applicable
to the facts of the present case.
10. In the above circumstances, I hold that the
Civil Revision Application, being sans substance, is
liable to be dismissed. Hence, the order :
O R D E R
The Civil Revision Application is dismissed. No
costs.
Sd/
[SANGITRAO S. PATIL]
JUDGE
Print Page
respondent on behalf of a registered trust namely
Pandurang Vitthal Firm Private Limited. He ought to
have been authorised by the said trust to institute a
suit on its behalf. No such authorisation was produced
by him with the plaint. Therefore, it was held that the
respondent was not competent to file and prosecute the
suit. In my view, this is clearly a formal defect in
the suit. The valuable rights of the parties cannot be
allowed to be defeated on account of such formal
defects. Consequently, in view of the judgments cited
by the learned counsel for the respondent, which are
fully applicable to the facts of the present case, I am
of the opinion that the learned Adhoc District Judge1,
Latur rightly allowed the application (Exh15) and
rightly permitted the respondent to withdraw the suit
and file a fresh suit in respect of the same subjectmatter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 185 OF 2014
Sow. Saroj w/o Ramesh Jadhav, V Kongaree Veera Reddy,
CORAM : SANGITRAO S. PATIL, J.
Dated : 8th SEPTEMBER, 2016
Citation: 2016 (5) ALLMR 903
The original defendants in Regular Civil Suit
No. 22 of 2004 have preferred this application,
challenging the legality and correctness of the order
dated 1st January, 2014, passed in Regular Civil Appeal
No. 32 of 2010 by the learned Adhoc District Judge1,
Latur whereby the respondent (original plaintiff) has
been permitted to withdraw the said suit with liberty to
institute a fresh suit in respect of the same subject
matter.
2. The respondent instituted the above numbered
Regular Civil Suit in the Court of Civil Judge, Junior
Division, Ausa, seeking declaration of his title to the
suit property, admeasuring 11 gunthas out of the land
block No. 19/B/1, situate at village Budhoda, Taluka
Ausa and further sought perpetual injunction restraining
the applicants from disturbing his possession thereon.
The suit came to be dismissed by the learned Civil
Judge, Junior Division, Ausa vide judgment and decree
dated 9th September, 2009, mainly on the ground that the
suit property, in fact, was belonging to a firm namely
Pandurang Vitthal Firm Pvt. Ltd., which was registered
under the Bombay Public Trusts Act. However, the said
Firm had not passed any resolution, authorising the
respondent to institute the said suit and prosecute it.
The respondent preferred Regular Civil Appeal No. 32 of
2010 in the District Court at Latur against the judgment
and decree passed by the Trial Court. During pendency
of that appeal, the respondent filed an application
(Exh15) under Order XXIII Rule 3 (a) and (b) of the
Code of Civil Procedure (“the Code”, for short), seeking
permission to withdraw the suit with liberty to
institute a fresh suit in respect of the same subjectmatter
by setting aside the impugned judgment and
decree. The learned Adhoc District Judge1, Latur
allowed that application as per the impugned order.
3. The learned counsel for the applicants submits
that once the suit was dismissed by the Trial Court,
certain rights were created in favour of the applicants.
Consequently, the first appellate court was not
justified in setting aside the judgment and decree
passed by the Trial Court and allowing the respondent to
withdraw the suit with liberty to file a fresh suit in
respect of the same subjectmatter. In support of his
contention, he relied on the judgment in M.B.
Development Corporation V. Manilal Patel & Co. 2001
(Supp.) Bom. C.R. 801. He, therefore, submits that the
impugned order may be set aside and the order passed by
the Trial Court may be restored.
4. As against this, the learned counsel for the
respondent submits that the appeal being in continuation
of the suit, the judgment and decree passed by the Trial
Court had not become final due to pendency of R.C.A. No.
32/2010. It was, therefore, open to the respondent to
withdraw the suit with liberty to file a fresh suit on
the ground that because of the technical defect in
drafting the plaint, it was liable to be dismissed. He
submits that the first appellate court has rightly set
aside the judgment and decree passed by the Trial Court
and allowed the application filed by the respondent
under Order XXIII Rule 3 (a) and (b) of the Code by
granting him permission to withdraw the suit with
liberty to file a fresh suit in respect of the same
subjectmatter. In support of his contention, he cited
the judgments in the cases of (i) Ratan Lal and
another V. Mohammad Hamidulla Khan AIR 1921 Allahabad
65, (ii) Suraj Pal Singh V. Gharam Singh and others AIR
1973 Allahabad 466 and (iii) Mahendra Uttamrao Kadam and
others V. Kacchi Properties 2011 (7) ALL M.R. 386.
5. The provisions of Order XXIII Rule (3) of the
Code read as under :
(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 subjectmatter 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 subjectmatter of such suit or such
part of the claim.”
6. There is no dispute about the proposition that
the appeal is continuation of the suit and the decree
passed by the Trial Court would not become final until
the appeal is decided. As such, the application for
withdrawal of the suit can very well be filed during
pendency of the appeal. In the case of Suraj Pal Singh
(supra), the suit was dismissed and during the pendency
of the appeal, the learned counsel for the
plaintiff/appellant made an application for withdrawal
of the suit. It was observed by the Allahabad High
Court that the decree of dismissal of the suit by itself
does not confer any right on any party to the suit. In
view of these observations, the contention of the
learned counsel for the applicants herein that because
of the dismissal of the suit by the Trial Court, certain
rights have been accrued in favour of the applicants,
cannot be accepted.
7. Relying on the judgment in case of M.B.
Development Corporation (supra), the learned counsel for
the applicants submits that the respondent filed a suit
on behalf of a Firm which is not registered. As such,
the defect in the suit was not formal but was
substantive. Therefore, the suit ought to have been
dismissed and accordingly has rightly been dismissed by
the Trial Court. He submits that the suit cannot be
allowed to be withdrawn with liberty to file a fresh
suit when there is substantive defect therein.
8. As against this, the learned counsel for the
respondent relied on the judgment of the Bombay High
Court in the case of Mahendra uttamrao Kadam (supra),
wherein the suit presented by the plaintiff, which was
an unregistered firm, being not maintainable in view of
Section 69 of the Partnership Act, considering the said
defect as a formal defect, the plaintiff was permitted
to withdraw the suit with liberty to file fresh suit on
the same cause of action. In the said judgment, in
paragraph 9, there is reference of the judgment in the
case of M/s Haldiram Bhujiawala V. Anand Kumar Deepak
Kumar 2000 (3) SCC 250, wherein in the similar
circumstances, it was held that if the firm is not
registered on the date of suit and the suit is to
enforce a right arising out of a contract with the third
partydefendant in the course of its business, then it
will be open to the plaintiff to seek withdrawal of the
plaint with leave and file a fresh suit after
registration of the firm, subject of course to the law
of limitation. It is further observed that this is so
even if the suit is dismissed for a formal defect.
9. In the present case, the suit was filed by the
respondent on behalf of a registered trust namely
Pandurang Vitthal Firm Private Limited. He ought to
have been authorised by the said trust to institute a
suit on its behalf. No such authorisation was produced
by him with the plaint. Therefore, it was held that the
respondent was not competent to file and prosecute the
suit. In my view, this is clearly a formal defect in
the suit. The valuable rights of the parties cannot be
allowed to be defeated on account of such formal
defects. Consequently, in view of the judgments cited
by the learned counsel for the respondent, which are
fully applicable to the facts of the present case, I am
of the opinion that the learned Adhoc District Judge1,
Latur rightly allowed the application (Exh15) and
rightly permitted the respondent to withdraw the suit
and file a fresh suit in respect of the same subjectmatter.
The judgment in the case of M.B. Development
Corporation (supra), cited on behalf of the applicants,
in circumstances of the case, cannot be made applicable
to the facts of the present case.
10. In the above circumstances, I hold that the
Civil Revision Application, being sans substance, is
liable to be dismissed. Hence, the order :
O R D E R
The Civil Revision Application is dismissed. No
costs.
Sd/
[SANGITRAO S. PATIL]
JUDGE
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