Case No: Civil Revision Case No.169 of 1997
Judge: Mahfuzur Rahman,
Court: Appellate Division ,,
Advocate: Nitai Roy Chowdhury,Moazzem Hossain,,
Citation: 52 DLR (HCD) (2000) 70
Case Year: 2000
Appellant: Sk Abul Kashem
Respondent: Abdus Samad Biswas
Subject: Property Law,
Delivery Date: 1999-05-11
Sk Abul Kashem Vs. Abdus Samad Biswas
52 DLR (HCD) (2000) 70
(Civil Revisional Jurisdiction)
Mahfuzur Rahman J
Gour Gopal Saha J
Sk Abul Kashem…………………..Petitioner
Abdus Samad Biswas…………………Opposite Party
May 11, 1999.
Code of Civil Procedure (V of 1908)
Order XXIII rules I & 2 (a)(b)
The court may allow withdrawal of such if it is satisfied that the suit must fail by reason of some formal defects or there are sufficient other grounds.
Case Referred To-
Md. Badaruddin Moral and others Vs. Santosh Kumar Sen and others, 41 DLR (AD) 156.
Nitai Roy Chowdhury, Advocate—For the Petitioner.
Moazzem Hossain, Advocate—For the Opposite Party.
Civil Revision Case No.169 of 1997.
Mahfuzur Rahman J. – This Rule at the instance of the plaintiff under section 115 of the Code of Civil Procedure is directed against an order passed by District Judge, Magura in Title Appeal No.52 of 1996 rejecting the application for withdrawal of the case.
2. The short facts relevant are that, the petitioner being plaintiff instituted the Title Suit No.10 of 1991 in the Court of Subordinate Judge, Magura for declaration of title and for partition in respect of 10 annas 13 gondas one kara and one Keranti share. The opposite party being defendant Nos.4 (Ka) to 4(uma) contested the suit by filing written statement denying all material allegations made in the plaint.
3. The learned trial Court decreed the suit by his judgment and decree dated 26-2-96.
4. Being aggrieved by the aforesaid judgment and decree the plaintiff petitioner preferred Title Appeal No.52 of 1996 in the court of the learned District Judge, Magura. While the appeal was thus proceeding the plaintiff petitioner being appellant on 12-10-96 filed an application under Order 23 rule 1 of the Code of Civil Procedure before the District Judge to accord permission for withdrawal of the suit with permission to sue afresh after setting aside the judgment and decree of Title Suit No.10 of 1995, contending that the learned Subordinate Judge while passing the judgment in the suit came to a finding that there was no cause of action for the suit and, as such, the suit is not maintainable, which was rejected by him on 12-10-96.
5. As against that the petitioner moved this Court and obtained this Rule.
6. Mr. Nitai Roy Chowdhury, the learned Advocate for the petitioner, submits that in view of the facts that the learned Judge found that since there was no cause of action the suit is not maintainable, the appellate Court erred in law in not allowing the application for withdrawal of the case. He further submits that since there was a formal defect in the suit, the learned appellate Court erred in law in not allowing the application for withdrawal of the case. He lastly contends that the withdrawal of the suit will not deprive the, defendant, of their benefit if the courts below decides in their favour and, as such, the appellate Court committed an error of law in not allowing the application for withdrawal under Order 23 rule 1 of the Code of Civil Procedure occasioning failure of justice.
7. Mr. Moazzem Hossain, the learned Advocate for the opposite parties, contends that there was no illegality in passing the impugned order rejecting the application for withdrawal of the suit. He further submits that the plaintiff allowed the suit to be proceeded knowing full well about the defect and the trial Court dismissed the suit on contest and there is no provision for withdrawal of the suit at the stage of appeal.
8. Heard the learned Advocates and perused the impugned order and also we have gone through the provision of Order 23 rule 1 of the Code of Civil Procedure which provides:
23.1 (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other 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 abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of claim.
9. Appeal is the continuation of the suit and this rule 2(a) of Order 23 CPC applies to appeals also which can allow the withdrawal with liberty to bring fresh suit. From the reading of Order 23 rule 2(a)(b) it is clear that the court may allow such withdrawal if it is satisfied that the suit must fail by reason of some formal defects or there are sufficient other grounds. It further appears from the impugned judgment and decree of the trial Court annexed to the petition as Annexure-A that the suit of the plaintiff petitioner was dismissed on contest and on a finding that there is no cause of action. It further appears from the Judgment that the learned Advocate for the plaintiff petitioner also asserted during trial that in a suit for partition cause of action is not necessary and filed an application for amendment of the plaint to that effect by an application dated 4-3-92 which after hearing was rejected by order dated 28-6-93. We find the plaintiff-petitioner allowed the suit to be dismissed on merit knowing full well about the alleged defect in the suit and thereafter preferred Title Appeal No. 52 of 1996 in the court of the District Judge, Magura. Before the appellate Court they filed the application under Order 23 rule 1 of the Code of Civil Procedure for withdrawal of the suit to sue afresh allowing the appeal setting aside the judgment and decree appealed against.
10. In the case of Md. Badaruddin Moral and others Vs. Santosh Kumar Sen and others, reported in 41 DLR (AD) 156 wherein their Lordships have held that ‘defects can be amended by filing a petition for amendment of the plaint. But admittedly, it appears, that the petitioner did not take any step to that effect at the appellate stage even when their amendment petition was rejected by the trial Court and did not move the Higher Court for remedy. The trial Court, it appears, passed the judgment and decree appealed against touching all points on merits not only the defects about the cause of action. The learned Advocate for the petitioner could not show us any decision that on such facts an application under Order 23 rule 1 of the Code can be allowed for withdrawal of the suit at the appellate stage.
11. In view of the discussions made and the decisions referred above we are of the view that there is no ground to interfere with the impugned judgment and order passed by the learned District Judge in rejecting the application under Order 23 rules 1 and 2 of the Code of Civil Procedure and suffers from no illegality.
In the result, the Rule is discharged without any order as to costs.
The order of stay granted earlier by this court is hereby vacated.
Communicate this order to the court below at once.