NATABAR MAJHI Vs. BATA MAJHI

JUDGEMENT

(1.) CHALLENGE in this Civil Revision is to the Order Dated 17.7.2004 passed by the Learned Civil Judge (Senior Division), 2nd Court, Cuttack in Title Suit No. 29/92(FD) rejecting the application of the Petitioners to withdraw the suit with a liberty to bring a fresh suit.

(2.) THE facts of the case relevant for appreciation of the questions raised In this Civil Revision are as follows; Petitioners being the Plaintiffs filed a suit for partition against the Defendants the present Opposite Parties. The suit was preliminarily decreed ex parte against the said Defendants. The final decree proceeding has also been commenced after acceptance of the Commissioner's report as per the preliminary decree. At that stage the Plaintiff -Petitioners had filed a petition for amendment of the plaint to delete one lot of property from the suit schedule as the said property was wrongfully included in the plaint. The petition for amendment was rejected on 29.1.2004. Plaintiff -Petitioners had also filed a petition under Order 47 Rule 1 read with Section 151 of the Civil Procedure Code with a prayer to review the Judgment and decree passed in the aforesaid suit in which preliminary decree was passed on 3rd November, 1995 on the ground that by mistake self acquired property of Plaintiff No. 1 had been included in suit schedule which they wanted to exclude during final allotment of shares in Court of final decree proceeding. The said petition of the Plaintiffs was rejected by Order Dated 24.11.2003 as the same was devoid of merit and the Plaintiffs did not chose to challenge those orders. While the matter stood thus, the Plaintiff -Petitioners have filed a petition under Order 23 Rule 1(3) of Civil Procedure Code to withdraw the suit with a leave to file a fresh suit as inadvertently some plots which are exclusive properties recorded in the name of Plaintiffs was wrongly included in the suit schedule and those properties are not liable for partition. They further added that the mistake apparent on record could not be detected as the preliminary decree was passed ex parte. Therefore, they may be permitted to withdraw the suit with a liberty to bring a fresh suit. The Learned Court below rejected the said petition on the ground that the failure to make necessary claim is not a formal defect and inclusion of some self -acquired properties by the Plaintiffs in the original suit and allowing the case to proceed till the Judgment and decree on the same in their favour is not a formal defect. Since the Plaintiff -Petitioners' application for amendment of the plaint to correct the suit schedule property is rejected and petition for review of Judgment also rejected, Petitioners have failed to establish that there were sufficient grounds to allow them to institute a fresh suit.

(3.) BEFORE proceeding further the relevant portions of the provisions are extracted hereunder; Order -XXIII Withdrawal and Adjustment of Suits