PANNALAL GUPTA Vs. KUMUD RANJAN GUPTA

JUDGEMENT

(1.) This Civil Revision Petition is so filed U/s. 115 read with Section 151 CPC against the order dated 13.2.92 passed by the learned Assistant District Judge, Tinsukia in Title Suit No. 86/86 by virtue of Which on the basis of a petition as filed by the plaintiff- OP dtd. 6.9.90 got so disposed of allowing the plaintiff-OP as to withdraw the suit also with a permission to file a fresh suit. However, there was no order as to costs.

(2.) Mr A. Roy, the learned counsel for the petitioner-defendant submits that while disposing of the petition as filed by the OP- plaintiff U/O.43, Rule 1(3) CPC, it was incumbent on the part of the learned Court below as to assign reason for his satisfaction particularly with regard to his giving permission to the plaintiff as to file a fresh suit which in the instant case has not been done. The second point raised is that since one of the defendants died and his heir was not substituted within time therefore the whole suit abated and in such case too the withdrawal with permission, to file fresh suit should not have been allowed. In support of his these contentions the learned counsel for the petitioners has banked upon three of the reported cases and they are 1. AIR 1944 Allahabad 224 (Reaz Uddin and others-Vs- Mr Sajid Hussain and another), 2. AIR 1947 Madras page 59 (T.K. Abdul Razak Ravuthar and others-Vs-Mohammad Hanif Sahib and another) and 3. (1987) 1 Supreme Court Cases 5 (Sarguja Transport Service- Vs-State Transport Appellate Tribunal, M.P. Gwalior and others). It is also pointed that in the facts and circumstances of the case it was incumbent on the part of the opposite party-plaintiff as to file a partition, suit instead of filing the suit for declaring the lease deed void.

(3.) Mr M.K. Choudhury, the learned counsel representing the opposite party-plaintiff, on the other hand, has submitted that a position was filed by the present opposite party- plaintiff for the withdrawal of the suit with a permission to file a fresh suit which had been pending for years together and the petition was allowed by the learned Asstt. District Judge, Tinsukia on 13.2.92 granting permission to withdraw and to file a suit afresh. It is pointed out by Mr M.K. Choudhury, the learned counsel for the opposite party-plaintiff that the learned Court below was perfectly justified in allowing to withdraw the suit with a permission to file the suit afresh. In support of his contention the learned counsel has banked upon a reported case AIR 1968 SC page 111 (M/s.Hulas Rai Baij NathVs-Firm K.B. Boss and Company). The learned counsel has particularly referred to its paragraph 2 and has pointed out that nowhere the defendant-petitioner had made out a case against withdrawal and there was no counter and in such circumstances the learned Court below was thus perfectly justified in allowing the plaintiff-opposite party to withdraw the suit with a permission to file afresh. It is further pointed out that all the points raised today by the learned counsel for the petitioner-defendant particular as regards the maintainability of the fresh suit to be filed could be raised before the presiding officer at the initial stage when such suit afresh is filed. In this connection a reported case AIR 1985 Allahabad page 61 (Bharat and Others-Vs-Ram Pratap and others) is cited and by referring to paragraph 15 of this judgment he has submitted that the prayers so made on behalf of the plaintiff-opposite party for withdrawal of the suit and to file a fresh suit could not have been splitted up- and these had to be considered jointly and in that case, as submitted, even if the order of the Court is silent with regard to the grant of permission for filing fresh suit, the order for withdrawal itself amounts to granting permission to file fresh suit when the suit is prayed to be withdrawn with a prayer to file fresh suit Mr M.K. Choudhury, the learned counsel for the opposite party-plaintiff has referred (to another reported case AIR 1976 Gauhati page 1 (Union of India and another- Vs-Momranjan Banik) on the point and has submitted that the impugned order so passed by the learned Court below dated 13.2.92 thus requires no interference.