What is a “formal defect” has been explained by the Apex Court in a recent decision rendered in case of V. Rajendran and another versus Annasamy Pandian (Dead) through Legal representatives Karphyayani Natchiar reported in (2017) 5 SCC 63 wherein it was held as under:
“10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors. (2000) 5 SCC 458, it has been held that it is the duty of the Court to be satisfied about the existence of “formal defect” or “sufficient grounds” before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the “formal defect” or “sufficient grounds”, such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the
“formal defect” or “sufficient grounds”. “Formal defect” is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.
“Formal defect” has been described as a defect of form prescribed by the Rules of procedure such as, want of notice under Section80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. As held hereinabove by the Apex Court “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. Evidently, lack of pecuniary jurisdiction in the instant case did not affect the merits of the case of either of the parties rather it would fall within the meaning of formal defect as provided under Order XXIII Rule 3(a). Since the trial had not even commenced and the lack of pecuniary jurisdiction was pointed out to the learned trial Court at the very outset, the plaintiff had an option either to seek return of the plaint to be presented before the concerned court or to seek withdrawal of the suit with a liberty to file a fresh suit after curing the defect.
{Para 8}
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
CRP No.59 of 2023
Sri Rathindra Chandra Das Vs Sri Barun Chandra Das and another
Coram: HON’BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Dated: 13.02.2024
Heard Mr. Soumendu Roy, learned counsel assisted by Mr.
R.K.P Singh, learned counsel appearing for the petitioner and also heard Ms.
R. Paul, learned counsel appearing for the respondents.
[2] Title Suit No.01 of 2023 instituted by the plaintiff/respondent
herein before the Court of learned Judicial Magistrate, 1st Class, Kamalpur,
Dhalai Judicial District suffered from want of pecuniary jurisdiction.
Initially the plaintiff filed a petition under Order-VII, Rule-10-A read with
Section 151 of CPC for return of the plaint. However, on 11.09.2023 when
the case was fixed for hearing on that petition, an application Order XXIII,
Rule-1 of CPC was filed by the plaintiff seeking leave of the Court to
withdraw the suit with a liberty to file a fresh suit in the appropriate court of
law. The learned Court vide impugned order dated 11.09.2023, allowed the
plaintiff to withdraw the suit under Order XXIII, Rule-1 of CPC with a
liberty to file a fresh suit in an appropriate court of law. Defendant being
aggrieved has approached this Court in the present civil revision petition.
[3] Mr. Soumendu Roy, learned counsel for the petitioner submits
that if the Court suffered from lack of jurisdiction on pecuniary grounds, the
only option left before the Court was to return the plaint to be presented
before the competent court in terms of Order-VII, Rule 10-A of CPC.
However, learned trial Court committed an error of jurisdiction in ignoring
the express provision of law Order-VII Rule 10-A and allowing the
withdrawal of the suit with a liberty to file a fresh suit before the appropriate
court of law. It is also stated that the plaintiff has after withdrawal of the suit
filed a fresh suit before the learned Civil Judge (Senior Division), Court
No.1, Ambassa, Dhalai, Tripura with an improved pleadings. The impugned
order, therefore, suffers from jurisdictional error and is fit to be set aside.
The plaintiff cannot be allowed to improve his case after withdrawal of the
suit which suffered from lack of pecuniary jurisdiction before the Court of
learned Judicial Magistrate, 1st Class, Kamalpur, Dhalai Judicial District.
[4] Learned counsel for the respondents submits that no vested
right was created in favour of the defendant which could be upset because of
withdrawal of the suit with a liberty to file a fresh suit under Order XXIII,
Rule 1 read with Rule 3 of CPC. It is submitted that Order XXIII Rule 1
clearly indicates that the suit can be withdrawn any time after the institution
and Rule 3 thereof provides that if the court is satisfied that the suit must fail
by reason of some formal defects, it may on such terms as it thinks fit, grant
the plaintiff permission to withdraw from the said suit and institute a fresh
suit in respect of the subject matter of such suit or such part of the claim. It
is open for the defendant to object to the fresh suit filed before the Court of
Civil Judge, Senior Division, Ambassa by written statement. Such
contentions whether the plaintiff had improved his cause of action or
changed the subject matter of the suit are well within the capacity of the
defendant to be raised in the written statement to be filed before the
concerned court. Therefore, there is no error in the impugned order which
warrants interference under Article 227 of the Constitution of India.
[5] I have considered the submissions of learned counsel for the
parties and taken note of the relevant material facts placed from the record. I
have also gone through the impugned order. Order VII Rule 10-A is
extracted hereunder:
“[10-A. Power of Court to fix a date of appearance in the Court where
plaint is to be filed after its return.-(1) Where, in any suit, after the
defendant has appeared, the Court is of the opinion that the plaint should be
returned, it shall, before doing so, intimate its decision to the plaintiff.”
(2) Where an intimation is given to the plaintiff under sub-rule (1), the
plaintiff may make an application to the Court-
(a) specifying the Court in which he proposes to present the plaint after its
return,
(b) praying that the Court may fix a date for the appearance of the parties in
the said Court, and
(c) requesting that the notice of the date so fixed may be given to him and
to the defendant.
(3) Where an application is made by the plaintiff under sub-rule (2), the
Court shall, before returning the plaint and notwithstanding that the order
for return of plaint was made by it on the ground that it has no jurisdiction
to try the suit,-
(a) fix a date for the appearance of the parties in the Court in which the
plaint is proposed to be presented, and
(b) give to the plaintiff and to the defendant notice of such date for
appearance.
(4) Where the notice of the date for appearance is given under sub-rule (3),-
(a) it shall not be necessary for the Court in which the plaint is presented
after its return, to serve the defendant with a summons for appearance in
the suit, unless that Court, for reasons to be recorded otherwise directs, and
(b) the said notice shall be deemed to be a summons for the appearance of
the defendant in the Court in which the plaint is presented on the date so
fixed by the Court by which the plaint was returned.
(5) Where the application made by the plaintiff under sub-rule (2) is
allowed by the Court, the plaintiff shall not be entitled to appeal against the
order returning the plaint.
It provides that in any suit after the defendant has appeared, if
the court is of the opinion that the plaint should be returned, it shall, before
doing so, intimate its decision to the plaintiff and where an intimation is
given to the plaintiff under sub-rule (1), the plaintiff may make an
application to the Court specifying (a) the Court in which he proposes to
present the plaint after its return (b) praying that the Court may fix a date for
the appearance of the parties in the said Court and (c) requesting that the
notice of the date so fixed may be given to him and to the defendant. When
such an application is made by the plaintiff under sub-rule (2), the Court
before returning the plaint and notwithstanding that the order of return of
plaint was made on the ground that it had no jurisdiction to try the suit (a)
fix a date for appearance of the parties in the Court in which the plaint is
proposed to be presented and (b) give the plaintiff and to the defendant
notice of such date for appearance.
[6] In the present case, as it appears from perusal of the impugned
order, the decision of the learned Court on Order VII Rule 10-A of CPC had
not been taken. Instead the plaintiff filed an application under Order XXIII
Rule 1 of CPC seeking permission to withdraw the suit with a liberty to file
a fresh suit in an appropriate court of law. The suit obviously had not
commenced as neither written statement was filed by the
defendant/petitioner herein nor any issues were framed. In that way, no
vested right had been created in favour of the defendant. In this regard, it is
apposite to refer to the decision of the Apex Court in case of Sneh Gupta
versus Devi Sarup and others, reported in (2009) 6 SCC 194. The Apex
Court at paragraph 33 and 35 of the judgment has laid down that the right to
withdraw a suit is hedged with a pre-condition that it cannot be withdrawn
by a party after it acquires a privilege. Right to withdraw a suit of the party
bringing the suit would be unqualified, if no right has been vested in any
other party.
[7] Order XXIII, Rule (1) of CPC is also extracted hereunder as a direct application to the case at hand :
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 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 nor 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 the pleader
to the effect that the abandonment proposed is, in his opinion, for the
benefit of the minor or such other persons.
(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-
(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 preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise 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.
Under Order XXIII, Rule (1), a plaintiff can at any time after
the institution of the suit make an application as against all or any of the defendants to abandon his suit or abandon a part of his claim. On such an application being made the Court under sub-rule (3) has to be satisfied that
(a) the 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; in such an events, 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.
[8] What is a “formal defect” has been explained by the Apex Court in a recent decision rendered in case of V. Rajendran and another versus Annasamy Pandian (Dead) through Legal representatives Karphyayani Natchiar reported in (2017) 5 SCC 63 wherein it was held as under:
“10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors. (2000) 5 SCC 458, it has been held that it is the duty of the Court to be satisfied about the existence of “formal defect” or “sufficient grounds” before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the “formal defect” or “sufficient grounds”, such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the
“formal defect” or “sufficient grounds”. “Formal defect” is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.
“Formal defect” has been described as a defect of form prescribed by the Rules of procedure such as, want of notice under Section80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. As held hereinabove by the Apex Court “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. Evidently, lack of pecuniary jurisdiction in the instant case did not affect the merits of the case of either of the parties rather it would fall within the meaning of formal defect as provided under Order XXIII Rule 3(a). Since the trial had not even commenced and the lack of pecuniary jurisdiction was pointed out to the learned trial Court at the very outset, the plaintiff had an option either to seek return of the plaint to be presented before the concerned court or to seek withdrawal of the suit with a liberty to file a fresh suit after curing the defect.
[9] Learned trial Court on being satisfied with the prayer, allowed
the plaintiff to withdraw the suit with a liberty to file it before the competent
court of law. The contention of the petitioner that such a course was
impermissible does not merit acceptance for the reason that suit had neither
commenced and moreover, no right had been vested in the other party i.e.
the defendant. If the plaintiff has made improvisation in the fresh suit filed
before the court of learned Civil Judge, Senior Division, Ambassa it is for
the defendant i.e. the petitioner herein to take all objections as permissible in
law before the said court. However, the impugned order does not appear to
suffer from any lack of jurisdiction or error touching jurisdiction which
requires interference by this Court.
[10] Accordingly, the instant civil revision petition is dismissed.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH) CJ
DIPESH DEB Digitally signed by DIPESH DEB
Date: 2024.02.19
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