HARI PRASAD SARMA Vs. SMTI. NIBEDITA SAHA

JUDGEMENT

(1.) Heard Mr. T.C. Khatri, learned Sr. counsel assisted by Mr. S.K. Jain, learned counsel for the petitioner. Also heard Mr. A.K. Roy, learned counsel for the opposite parties. By this revision petition the petitioner has challenged the order dated 11-01-2013 passed by learned Civil Judge, Kamrup in Title Suit No. 277/2008, thereby allowing the application of the plaintiffs/ opposite parties to withdraw the said suit with liberty to file fresh suits. By filing the application under Order XXIII Rule 1(3) of the CPC before the learned Court, the plaintiff stated that in the pending title suit two cause of action were erroneously clubbed together and the plaintiffs themselves being ignorant about the legal provisions and procedures instituted the suit as advised by their learned counsel. But subsequently on 29-06-2012, when the necessity for changing their former legal counsel and engaging a new set of legal counsel arose, they were instructed for the first time that the suit is likely to fail in view of the erroneous mis-joinder of the cause of action and as such it is necessary to file appropriate application craving leave of the Court to withdraw the suit for liberty to file fresh suits.

(2.) The defendant petitioner submitted objection there against wherein it was not disputed that the defect had stated in the application under Order XXIII Rule 1(3) CPC are really not formal defects. However, but the defendants challenged the same on the ground that they having raised objection as to maintainability of the suit and having made prayer for framing a preliminary issue under Order XIV Rule 2(2) of the CPC, the learned Court ought to have decided the said issues and without doing that the plaintiffs ought not to have been permitted to leave to withdraw the suit for filing a fresh.

(3.) After hearing learned counsel for the parties, the learned trial court came to the finding that ground of mis-joinder of cause of action is a formal defect within the meaning under Order XXIII rule 1 CPC and as such it was a fit case to exercise jurisdiction for granting leave to the plaintiffs to withdraw the suit with liberty to file fresh suits and thereby allowed the prayer vide order dated 11-01- 2013.