DINABANDHU DEVA BHAGAWATI Vs. NIRADA BALA DEVI

JUDGEMENT

(1.) THIS appeal arises out of the judgment and decree dated 17 -8 -1979 passed by Shri N. C. Barua, Assistant District Judge, Barpeta in Title Suit No. 4 of 1974 dismissing the plaintiff's suit on the grounds, (a) that in respect of the same causes of action the plaintiff had instituted Title Suit No. 7 of 1973 but he withdrew from the suit under Order 23 of the Civil P. C. for short 'the Code', without obtaining liberty to institute a fresh suit in respect of the subject matter of the suit; (b) the plaintiff did not make any averment in his plaint that he had withdrawn the suit with the permission of the Court with liberty to institute a subsequent suit and, (c) the plaintiff did not pay the cost of Rs. 50/ - awarded by the Court while permitting the plaintiff to withdraw 'from Title Suit No. 7 of 1973, a condition precedent for institution of the subsequent suit.

(2.) ORDER 6 deals with 'pleadings' generally. The term 'pleadings' means formal allegations by the parties of their respective claims and defences, for the judgment of the Court The terra 'pleadings' has a technical and well defined meaning. Pleadings are written allegations of what is affirmed on the one side or denied on the other disclosing to the Court having jurisdiction to try the cause, the real matter in dispute between the parties. A plaint must contain 'material facts' as to the cause of action and nothing more. No evidence need be stated. It is indubitable that in the instant case the defendants, in their written statements (pleadings), did not take up the plea that the subsequently instituted suit was not maintainable in view of the bar imposed by Order 23, Rule 1 (4) of 'the Code'. Therefore, no specific issue was framed as to the alleged violation of Order 23, Rule 1 of 'the Code'. It is well known the pleadings of the adversary in a civil action are meant for setting forth the controversies to enable the other side to meet the controversies. In the instant case the defendants could have taken up the plea of non -maintainability of the suit in view of the bar under Order 23. Rule 1 (4) of the Code. However, no such plea had been taken by the defendants nor any issue was framed apart from a general omnibus issue reading:

(3.) BE that as it may, the plaintiff, by way of abundant caution, proved the order dated 4 -1 -1974 in Title Suit No. 7 of 1973 passed by the Assistant District Judge, Barpeta, whereby the learned Judge upon hearing the parties allowed the plaintiff to withdraw from the suit (T. S. 7/73) under Order 23, Rule 1 (3) of the Code with liberty to institute a fresh suit in respect of the subject matter of the suit. The learned Judge was satisfied that the suit would fail for formal defects as pointed out by the plaintiff. However, the plaintiff was saddled with cost of Rs. 50/ - payable to the defendant. The certified copy of the order sheet produced before us clearly indicates that on 30 -1 -1974 the costs were deposited by the present plaintiff whereupon the learned Judge passed an order directing the defendant to receive the deposited amount. We quote the order dated 4 -1 -1974 in Title Suit No. 7 of 1973 which runs as follows: - -