DAMYANTI RANI BAKSHI Vs. MAHARAJ KUMAR MEHTA

JUDGEMENT

(1.) This Revision is directed against the Order dated 19.1.1994 whereby the learned Civil Judge had declined to grant permission to the Plaintiff to withdraw the Suit. The Plaintiff had filed an application under Order XXXIII Rule 1 and Section 115 of the Code of Civil Procedure, stating therein that the Defendant had raised the preliminary objection to the effect that "the Suit as framed is not maintainable and is barred under Section 34 of the Specific Relief Act." Predicated on this preliminary objection, the Court had framed Issue No.4 which reads as follows:

(2.) On a holistic reading of the Code of Civil Procedure, one will arrive at the conclusion that the moment a Suit is filed, it need not proceed all the way to a final decision. Order IX contemplates that if a Suit is dismissed for non-prosecution or in the absence of the Defendant, a fresh Suit can nevertheless be filed subject to the law of limitation. No doubt the position is different where the Defendant has put in its representation. Order VII Rule 11 enumerates six circumstances in which a Plaint is to be rejected, one of which is that on a perusal of the Plaint, the relief claimed therein is barred by any law. Rule 13 of Order VII clarifies that the rejection of a Plaint on any of the grounds envisaged in that Order shall not of its own force preclude the Plaintiff from presenting a fresh Plaint in respect of the same cause of action.

(3.) When these provisions are kept in mind, it will be seen that the reason which weighed in the mind of the Trial Court for rejecting the application under Order XXXIII cannot be sustained and is discloses an error in the exercise of jurisdiction vested in that Court. The Lower Court has opined that a "formal defect means that defect in the suit which cannot be cured by the amendment." It has observed that the consequential relief could have been introduced by means of an amendment to the Plaint. The Plaintiff is dominus litis and in a situation such as this, the Court should have considered whether the Defendant ought to be compensated by way of costs. It also appears to me that the Court cannot dictate the manner in which a Suit should be prosecuted, by directing the Plaintiff to carry out amendments to the Plaint. In the present case the Defendant had appeared in the litigation. What if the "formal defect" had been discovered prior to his entering appearance. The Plaintiff need not have moved an application under Order XXXIII but may have chosen to simply stop appearing. In that event, the Suit would have been dismissed under Order IX of the Code, but as has already been seen, this dismissal would not preclude the filing of fresh case otherwise not prohibited by law. The Code thus clarifies that the principles of res judicata or those contained in Order II would not bar a fresh Suit.