KAILASH CHANDRA SWAIN Vs. BHASKAR BEHERA

JUDGEMENT

(1.) THE order of the Munsif, Bhubaneswar, refecting the petitioner's application under Order 23, Rule 1(3), Civil Procedure Code, for permission to withdraw the suit with liberty to file a fresh suit, is sought to be impeached in this revision petition.

(2.) THE petitioner, Kailash Chandra Swain, filed O. S. No. 54 of 1980 -I against the opposite parties praying for a decree for perpetual injunction restraining the defendants not to interfere with possession of the plaintiff without due process of law and for a decree for Rs. 600/ - against the defendants towards damages. The suit land was described as an area of Ac. 0.45 decimals in Plot No. 706/1136 under khata No. 256 of village Chandol. As per the description given in the plaint all the defendants are residents of village Chandol. During the pendency of the suit, an application under Order 23, Rule 1(3), C. P. C., was filed by the plaintiff mainly on the ground that some of the villagers of the suit village including the present defendants raised a claim of communal right of user with regard to the suit land and claimed to have raised a temple on a portion thereof and the rest of the suit land being used as 'Melan Padia'. In such circumstances, according to the plaintiff, it would be appropriate to file a suit under Order 1, Rule 8 C. P. C. The other grounds stated in the application are that in the recent Settlement Record -of -Rights the suit property has been recorded in the Anabadi Khata with a note of user by the villagers of Chandol and hence it is necessary to seek the relief for correction of the Record -of -Rights, In that case, the State of Orissa would have to be impleaded as a party. Since the suit is likely to fail for such formal defects the plaintiff sought for leave of the Court to file a fresh suit on the same cause of action. In the objection filed be the defendants, the only ground stated was that the application having been filed at a belated stage it should not be entertained. The defendants -opposite parties pleaded that they brought it to the notice of the plaintiff -petitioner in their objection to the petition for injunction that the suit property was being used by the villagers for communal purposes and that it has been so recorded by the Settlement authorities and other Revenue authorities. In spite of the knowledge of this fact, the plaintiff neither took any steps in the matter nor filed application under Order 23, Rule (1) at an earlier stage. When evidence has been led by both the parties an 1 the suit is about to be disposed of, the application by the plaintiff should not be granted.

(3.) THE sole ground on which the learned Munsif refused to accord leave to the plaintiff -petitioner is that the application was filed at a belated stage. The learned counsel for the petitioner contends that the reasons given by the Court below for rejecting the application cannot stand scrutiny in view of the provisions of the Code. He further contends that the order of rejection has been passed without due consideration of the relevant criteria and without due application of mind.