Allowed

Syeeda Begum v. Basant Kumar and Others

Uttarakhand HC10 May 2013CLR/18/2012

Case brief

AI extract

What is this about?

This judgment allowed a civil revision challenging the dismissal of an application under Order 23 Rule 1(3) CPC. The High Court held that the trial court erred in rejecting the plaintiff's petition to withdraw the suit with liberty to file a fresh suit due to defects like missing site plans, misplacing ownership, and selling part of property.

What did the court decide?

Impugned order set aside. Application 68A under Order 23 Rule 1(3) CPC allowed. Suit 80 of 2011 withdrawn with liberty to file fresh suit.

Syeeda Begum Vs Basant Kumar and Others — Property and Title | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND

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Civil Revision No. 18 of 2012

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Syeeda Begum, W/o Islam Khan R/o Village Salempur Mehdood Pargana Roorkee, Tehsil and District Haridwar

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……………. Revisionist/Plaintiff

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Versus

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Basant Kumar, S/o Fateh Chand

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Ravinder Kumar, S/o Shri Lakhan

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Sibbu, S/o Shri Lakhan

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All R/o Village Bahadarabad

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Tehsil and District Haridwar

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……………. Respondents/Defendants

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Mr. Siddhartha Singh, Advocate, present for the revisionist/plaintiff. Mr. Pankaj Miglani, Advocate, present for the respondents/defendants.

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Hon’ble Prafulla C. Pant,J.

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Heard.

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This revision is directed against the order dated 03.03.2012, passed by Civil Judge (Sr. Div.) Haridwar, in Suit No. 80 of 2011, whereby said court has dismissed the application 68A moved by the plaintiff for withdrawal of the suit with permission to file a fresh.

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Sub‐Rule (3) of Rule 1 of order 23 of Code of Civil Procedure, 1908 (for short C.P.C.) provides that where the court is satisfied that a suit must fail by reason of some formal defect, or that there are sufficient grounds

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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.

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The plaintiff in her application 68A stated before the trial court that the plaint is not accompanied with the site plan of the disputed property, nor it could be pleaded as to how on the basis of the ‘Will’ Usman Ali Khan became owner in possession of the disputed property, nor it is mentioned in the plaint that a part of the disputed property has already been sold on 24.08.2011 (subsequent to filing of the plaint) as such the plaintiff be allowed to withdraw the suit with liberty to file a fresh . The trial court has rejected the application only on the ground that the plaintiff could have moved amendment application to remove the defects.

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Learned counsel for the revisionist submitted that after amendment in Rule 17 Order 6 of Code of Civil Procedure, vide Act No. 22 of 2002 it is not easy to get the plaint amended as it is used to be before the proviso added to Rule 17 of Order 6 of the Code. On the other hand, learned counsel for the defendants submitted

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that the permission to file suit a fresh is not matter of right.

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Having considered submissions of learned counsel for the rival parties and after going through the impugned order, in the above circumstances, this Court is of the view that the trial court has erred in law in rejecting the application 68A moved by the plaintiff seeking to withdraw the suit with permission to file a fresh. It is not a case where the application of the plaintiff was malafide, nor it is a case where the plaintiff has desired to file a suit a fresh after he has lost right to maintain the suit on the cause of action for which the suit was filed, nor the harassment appears to have been attempted to be caused to the defendants.

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Therefore, without prejudice to the rights of the parties this revision is allowed. Impugned order dated 03.03.2012 passed by Civil Judge (Sr. Div.), Haridwar, in Suit No. 80 of 2011 is hereby set aside. Application 68A filed by the plaintiff under Order 23 Rule 1(3) of C.P.C. for withdrawal of the suit with permission to file a fresh is allowed. Suit no. 80 of 2011 stands withdrawn with liberty to file a fresh without prejudice to the rights of the parties.

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(Prafulla C. Pant, J.) 10.05.2013

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Parul

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Syeeda Begum v. Basant Kumar and Others

Case brief

What is this about?

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Syeeda Begum v. Basant Kumar and Others

Case brief

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