ABDUL BAREK Vs. MAHALI SHEIKH

JUDGEMENT

(1.) Heard Shri M.K. Sharma, learned counsel for the petitioner, who has filed the instant petition under Article 227 of the Constitution of India against an order dtd. 3/8/2022 passed by the learned Munsiff No. 1., Goalpara whereby a petition filed under Order 23 Rule 1 (3) of the CPC in Title Suit No. 25/2018 has been rejected. I have also heard Ms. K. Phukan, the learned Government Advocate.

(2.) The petitioner, as the plaintiff had instituted the aforesaid suit for declaration of right, title, interest and recovery of a possession pertaining to a plot of land. The suit was contested by the private respondent whereas it proceeded ex-parte against the State respondents. It is also the admitted case that the plaintiff's evidence through three witnesses were given by way of affidavit and PW1 was also cross examined. However, at that stage, the application under Order 23 Rule 1 CPC was filed for withdrawal of the suit with liberty to institute a fresh suit.

(3.) Shri Sharma, the learned counsel for the petitioner by referring to the said petition filed under Order 23 Rule 1 (3) CPC has submitted that in paragraph-2 thereof, a formal defect was pointed out and in paragraph-3, a specific plea was taken on the ambiguity in the description of a part of the suit land. It is further submitted that though an observation has been made in the impugned order that the new set of counsel had entered appearance by filing Vakalatnama on 20/12/2019 and the amendment was sought for only on 11/2/2021, the learned counsel has submitted that in between, there were only four dates whereafter due to the Covid pandemic, there were no effective sittings and therefore, it cannot be said that there was inordinate delay. It is further submitted that in paragraph-3 of the plaint while stating the description, certain details were left out which can be termed to be formal defects.