BARU RAM Vs. BALDEVA

JUDGEMENT

(1.) PETITIONER No. 2 Dhanna Ram, son of Baru Ram filed a civil suit against the Gram Panchayat, Kheri Naru, Tehsil and Distt. Karnal, praying for permanent injunction for restraining the respondents from interfering with their lawful possession of about 19 Biswas of land. The suit was decreed on 1st August, 1974. In 1976, the Block Development Officer of the area filed an application for ejectment of petitioner No. 1 i. e. Baru Ram and respondent No. 2 Ram Singh before the Assistant Collector under the provisions of the Punjab Village Common Lands (Regulation) Act but the same was dismissed vide order dated 14th July 1976 on the plea that while the civil Court decree in favour of Baru Ram subsisted, his jurisdiction to entertain the application was barred. On 14th Jan 1977, respondent No. 1 Baldeva filed a suit against the petitioners for a declaration that the decree dated 1st August 1974, was a nullity and that the possession be restored to the land owner. i. e. the Gram Panchayat. The trial Court, on the pleadings of the parties, framed the following issues:

(2.) ON issue No. 1 the trial Court held that the decree dated 1st August, 1974 was not a nullity. On issue No. 2, the trial Court found that the plaintiff i. e. respondent No. 1 herein, had no locus standi to bring such an action as on his own showing the land belonged to the Gram Panchayat, having recorded the finding above, the suit was dismissed. Respondent No. 1 thereafter filed an appeal and during its pendency, moved an application under Order 23 Rule 1 (3) of the Code of Civil Procedure praying that he be allowed to withdraw the suit with permission to file a fresh one on the same cause of action in a representative capacity as envisaged by Order 1 Rule 8 of the Code. The District Judge, Karnal allowed the application holding that as the defect in the maintainability of the suit was entirely of a technical nature, there was no reason as to why the application be not allowed, Aggrieved by the aforesaid order, the present revision petition has been filed by the petitioner.

(3.) MRS. Alka Sarin, learned counsel for the petitioners has argued that the provisions of Order 23 Rule 1 (3) of the Code cannot be allowed to be utilised by a plaintiff who has been negligent in the conduct of his suit from the very initial stage. On facts, she has urged that the objection with regards to the locus standi of the plaintiff respondent No. 1 to file the suit was taken in the written statement but even in the replication filed by respondent No. 1, he persisted in his stand that he had the locus standi to file the suit. It has been urged on this basis that as the respondent was fully aware with regard to the objection taken but he nevertheless chose to proceed with the suit, as framed he should not be allowed at the stage of appeal to file a fresh suit on the same cause of action. In support of her plea, reliance has been placed on Nishi Kanta Sarkar v. Umar Lal Sarkar, AIR 1925 PC 711 and Piars Ram and anr. v. Ganesh Dass and ors. AIR 1967 Punjab and Haryana 237. I have gone through the decisions cited by the learned counsel and examined them in the light of the facts of this case. It has been held that the object of Order 23 Rules (1) 3 of the Code is to permit the plaintiff to have a fair trial on merits in cases where the defects are in mere form and can be rectified only by a de novo trial, but not in cases where the plaintiff wants to avoid his previous negligent conduct. It. has further been held that if the defect is due to the plaintiffs own fault, the court would be acting illegally and with material irregularity in the exercise of its jurisdiction in permitting the plaintiff to withdraw his suit and to file a fresh one. It has also been stated that where the defect was pointed out in the written statement it has to be assumed that the plaintiff was aware of the same and if he still tried to fight it out. He cannot take the benefit of order 23 Rules 1 and 2 at the stage of appeal. The facts of the case as indicated above, are identical to the facts in the present petition. The petition is accordingly allowed, the order dated 4th August, 1980 is set aside and the first appellate Court is directed to proceed with the appeal in accordance with law. The parties through their counsel are directed to appear before the Appellate Court on 10th November 1993.