VED PARKASH Vs. RAMESH CHAND

JUDGEMENT

(1.) Respondents Nos. 1 to 13 filed this suit under Order 1, Rule 8 of the Code of Civil Procedure for a declaration that the land in dispute was owned and possessed by the Balmiki community of Panipat and in the alternative that they have acquired the title by the prescription, which was dismissed by the trial Court. In the appeal, they moved an application under Order 23, Rule I of the Code of Civil Procedure for dismissal of the suit as withdrawn with the permission to file a fresh suit on the same cause of action. The learned counsel for the opposite party did not oppose the application and the learned Additional District Judge allowed the same observing thus :-

(2.) The learned counsel for the petitioner contended that the lower appellate Court has, acted illegally in passing the order relying on the concession of the counsel for the opposite party and without forming an independent opinion if the suit was liable to fail on any formal defect. He further contended that unless the Court discusses the formal defects alleged and expresses its opinion thereon, mere re-production of the words of the statute would not be sufficient to show an application of the mind on the part of the Court in the forming of the opinion that the suit was liable to be dismissed for some formal defect. Reliance for this proposition was placed on an earlier decision by me in Ram Kumar v. Kartar Singh, 1987 91 PunLR 274.

(3.) The learned counsel for the respondents, on the other hand, relied on a decision of the Allahabad High Court in Ragho Sewak Rai v. Bhola Singh, 1938 AIR(All) 450, wherein it was held that the Court would be called upon to go into the question whether a formal defect or other sufficient cause exists only if the opposite party denies that there is any such defect or sufficient cause. With due respect to the learned Judge, I am unable to subscribe to this view for two reasons. First, that the provisions of order 23, Rule 1 (3), Civil Procedure Code require that the Court must be satisfied before permission is granted as to the existence of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute. So, in recording satisfaction the Court may take into a fresh suit consideration the concession of the opposite party, but cannot solely rely thereon. Second, that a concession made by a counsel on a question of law would not bind the party and the order would be open to challenge in appeal or revision, as the case may be, on that ground. I, therefore, reiterate my view that an order under Order 23, Rule 1 (3), Civil Procedure Code cannot be passed by the Court simpliciter on the concession of the opposite party.